J-A28023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NICOLE SALLUSTIO                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ELI MERCER

                            Appellant                No. 659 EDA 2014


                Appeal from the Order Entered February 7, 2014
              In the Court of Common Pleas of Philadelphia County
                     Domestic Relations at No(s): 11-01564
                                                  Pacses #316112728


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED NOVEMBER 14, 2014

       Appellant Eli Mercer (“Father”) appeals from an order modifying

Father’s child support obligations for one minor child.1 After careful review,

we affirm on the basis of the thorough and well-reasoned opinion of the

Honorable Doris A. Pechkurow.



____________________________________________


1
 Nicole Sallustio (“Mother”) does not cross-appeal, but she attempts to raise
an additional claim of error not raised by Father. She claims that the trial
court improperly deviated from the support guideline by using the
adjustments delineated in Pa.R.C.P. 1910.16-4(c)(2) since these
adjustments only apply where the parties have an equal custody
arrangement and the parties at bar have a substantial or shared custodial
arrangement. Mother waived this claim of error by failing to file a cross-
appeal. See Bullman v. Giuntoli, 761 A.2d 566, 580 (Pa.Super.2000)
(where appellee addresses issue on appeal not raised by appellant and not
addressed in cross-appeal, issue is deemed waived).
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      The factual background of the instant matter is not material to our

disposition of the issue. The trial court aptly summarized the pertinent

procedural history as follows:

                  [Father] filed a Petition for Modification of
            Support on April 3, 2013, to modify the support
            obligation of $1,554.71 per month plus $35.54 on
            arrears, which had been entered on May 18, 2012. A
            hearing before the Master in Support was held on
            June 20, 2013, and a proposed order was submitted
            by the Master that [Father] pay $789.08 per month
            for the support of one child, plus $35.00 per month
            on arrears.

                   [Father] filed Exceptions on July 12, 2013,
            whereby [Father] claimed, inter alia, that the
            support order was unfair because of the respective
            incomes of the parties and the similar custody
            schedule for both parties. [Father]'s Exceptions were
            granted in part and on November 5, 2013, the
            proposed order was amended for [Father] to pay
            $374.22 per month for the support of one child, plus
            $30.00 per month on arrears. [Mother] filed a
            Petition for Reconsideration on November 19, 2013,
            which Petition was granted on December 3, 2013,
            and the November 19th order was made an interim
            order pending a full hearing.

                  On February 7, 2014, following the hearing on
            reconsideration, the within order was entered that
            [Father] pay a basic support obligation of $322.13
            per month, plus his proportionate share of child care
            and health insurance expenses, for a total support
            obligation of $595.33 per month, plus $20.00 per
            month on arrears.

Trial Court Opinion, 4/22/14 (“Trial Court Opinion”), at 1-2.




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      On February 26, 2014, Father filed a timely notice of appeal and

concurrently filed a timely 1925(b) statement. On April 22, 2014, the trial

court issued an opinion pursuant to Pa.R.A.P. 1925(a).

      Father raises the following claims for review:

      I.     Is $595.33 (plus $20 per month on arrears) a fair
             monthly payment for one parent to make to the
             other parent when the difference in custody is only 4
             days per month?

      II.    Given the fair and nearly equal shared custody
             schedule (March 21, 2013 Custody Order), should
             [Father] be required to pay support to [Mother]?

      III.   Given that Mother's income is higher than Father's,
             and that a fair and nearly equal custody Order was
             awarded to the parties, should Father be required to
             pay support to [Mother]?

      IV.    Given the fair and nearly equal shared custody
             schedule, should the support Order of November 5,
             2013 have been overturned on February 7, 2014 and
             amount increased?

      V.     Do[es] the support calculation, and the variables
             used in the calculation, that was made on February
             7, 2014 by Honorable Judge Doris A. Pechkurow fit
             the circumstances of this particular custody
             situation?

Father’s Brief at 3. Father has waived the first and fourth issues by not

including    these   issues   in   his   1925(b)   statement.   See   Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement . . . are waived”);

Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 (Pa.Super.2007) (“[A]ny




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issue not raised in an Appellant's Rule 1925(b) statement will be deemed

waived for purposes of appellate review”).

      The parties do not dispute that Father has a lower monthly income

than Mother. Father’s Brief at 7 (“[]Mother[] makes more money than

Father”); Mother’s Brief at 7 (referring to herself as the “economically

superior parent”). Based on this, Father claims that he should not be

obligated to pay child support. See Father’s Brief at 7. The thrust of Father’s

appeal revolves around three central issues: the custody schedule; the

parties’ respective incomes; and the overall methodology that trial courts

must employ in formulating a child support order. Since all of these issues

relate to whether the trial court directed Father to pay the proper amount of

child support, we address them together.

      An appellate court may reverse a child support order only if the court

finds that the order cannot be sustained on any valid ground, Maue v.

Gilbert, 839 A.2d 430, 432 (Pa.Super.2003), or the lower court has

committed an abuse of discretion. Kraisinger v. Kraisinger, 928 A.2d 333,

341-42 (Pa.Super.2007). An “abuse of discretion” is not merely an error of

judgment. Kraisinger, 928 A.2d at 341-42, but must rest upon clear and

convincing    evidence,   Portugal   v.    Portugal,   798   A.2d   246,   249

(Pa.Super.2002). This Court has found an abuse of discretion where:

      (1)    insufficient evidence exists to sustain the child
             support award;




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      (2)   the trial court, in reaching a conclusion, overrides or
            misapplies existing law;

      (3)   the judgment exercised is manifestly unreasonable;
            or,

      (4)   the result of partiality, prejudice, bias, or ill-will, as
            shown by evidence on the record.

Kraisinger, 928 A.2d at 341-42.

      “A support order will not be disturbed on appeal unless a trial court

failed to [properly] consider [] the requirements of the Rules of Civil

Procedure Governing Actions for Support, Pa.R.C.P. 1910.19 et seq., or

abused its discretion in applying these Rules.” Christianson v. Ely, 838

A.2d 630, 634 (Pa.2003) (quoting Ball v. Minnick, 648 A.2d 1192, 1196

(Pa.1994)). If the record demonstrates that the trial court has failed to

consider all factors relevant to an award of child support, the appellate court

should remand for a full evidentiary hearing. Gephart v. Gephart, 764 A.2d

613, 614-15 (Pa.Super.2000).          Also, in reviewing a petition for a

modification of child support, we examine a finding of either a material and

substantial change in circumstances or no such change for an abuse of

discretion. Yerkes v. Yerkes, 824 A.2d 1169, 1171-72 (Pa.2003).

      The Pennsylvania Rules of Civil Procedure 1910.1 et seq. govern

actions for support. In determining child support, the parties’ respective net

incomes must first be calculated. Id. The Rules provide for the calculation

of parties’ net incomes as follows:



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           Rule 1910.16-2. Support Guidelines. Calculation
           of Net Income

           Generally, the amount of support to be awarded is
           based upon the parties' monthly net income.

           (a) Monthly Gross Income. Monthly gross income
           is ordinarily based upon at least a six-month average
           of all of a party's income. The term ‘income’ is
           defined by the support law, 23 Pa.C.S.A. § 4302, and
           includes income from any source. The statute lists
           many types of income including, but not limited to:

           (1) wages, salaries, bonuses, fees and commissions;

           (2) net income      from    business   or   dealings   in
           property;

           (3) interest, rents, royalties, and dividends;

           (4) pensions and all forms of retirement;

           (5) income from an interest in an estate or trust;

           (6) Social Security disability benefits, Social Security
           retirement benefits, temporary and permanent
           disability benefits, workers' compensation and
           unemployment compensation;

           (7) alimony if, in the discretion of the trier of fact,
           inclusion of part or all of it is appropriate; and

           (8) other entitlements to money or lump sum
           awards, without regard to source, including lottery
           winnings,     income     tax    refunds, insurance
           compensation or settlements; awards and verdicts;
           and any form of payment due to and collectible by
           an individual regardless of source.

Pa.R.C.P. No. 1910.16-2(a). After ascertaining a party’s gross income, the

court deducts the following items from monthly gross income to arrive at net

income:

           (A) federal, state, and local income taxes;



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              (B) unemployment compensation taxes and Local
              Services Taxes (LST);

              (C) F.I.C.A. payments (Social Security, Medicare and
              Self-Employment     taxes)     and     non-voluntary
              retirement payments;

              (D) mandatory union dues; and

              (E) alimony paid to the other party.

Pa.R.C.P. No. 1910.16-2(c)(1). The court inserts the net income figures into

a set formula depending on the parties’ combined net income and number of

children.

       Rule 1910.16-4 (“the Rule”) contains the formula used to calculate the

obligor’s share of basic child support from the schedule in Rule 1910.16-3.2

The Rule requires the trial court to engage in a three-step process to

calculate the parties’ respective child support obligations. Id.

       First, the trial court applies the formula in Part I of subsection (a) of

Rule 1910.16-4 to arrive at “Each Parent’s Monthly Share of the Basic Child

Support Obligation.” Here, using this formula, the trial court determined that

“[Father] has 45.64% of the combined $12,192.47 [] monthly net income of

the parties and [Mother] has 54.36%.” Trial Court Opinion, at 4.

       Second, the trial court must make applicable adjustments for

substantial or shared child custody and additional expenses including, inter
____________________________________________


2
 The parties have a combined monthly net income of $12,192.47. See Trial
Court Opinion, 4/22/2014, at 4. Accordingly, Pa.R.C.P. 1910.16-3.1(a),
dealing with “high income” cases in which the combined monthly net income
exceeds $30,000.00, is not implicated.



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alia, child care and health insurance expenses. See Pa.R.C.P. 1910.16-4(c)

(when child spends 40% or more of his time during year with obligor, a

rebuttable presumption arises that obligor is entitled to reduction in basic

support obligation to reflect this time); see also Pa.R.C.P. 1910.16-6

(“Additional expenses permitted pursuant to this Rule 1910.16-6 may be

allocated between the parties even if the parties' incomes do not justify an

order of basic support”).

      Rule 1910.16-4(c)(1) provides:

            Except as provided in subsections (2) and (3) below,
            the reduction shall be calculated pursuant to the
            formula set forth in Part II of subdivision (a) [titled
            “Substantial or Shared Physical Custody Adjustment,
            if applicable”] of this rule. For purposes of this
            provision, the time spent with the children shall be
            determined by the number of overnights they spend
            during the year with the obligor.

Pa.R.C.P. No. 1910.16-4(c)(1). Rule 1910.16-4(c)(2) further provides:

            Without regard to which parent initiated the support
            action, when the children spend equal time with both
            parents, the Part II formula cannot be applied unless
            the obligor is the parent with the higher income. In
            no event shall an order be entered requiring the
            parent with the lower income to pay basic child
            support to the parent with the higher income.
            However, nothing in this subdivision shall prevent
            the entry of an order requiring the parent with less
            income to contribute to additional expenses pursuant
            to Rule 1910.16-6. . . . In all cases in which the
            parties share custody equally and the support
            calculation results in the obligee receiving a larger
            share of the parties' combined income, then the
            court shall adjust the support obligation so that the
            combined income is allocated equally between the
            two households.


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Id. This subsection applies in instances of equal custody.       Id. Citing this

subsection, as well as its discretion to deviate from the guidelines to avoid

an unjust result, the trial court adjusted Father’s support obligation in order

to avoid awarding Mother a larger share of the parties’ combined income.3

See Trial Court Opinion at 5-6; Id. at 6.

       Third, the trial court must consider an enumerated list of factors to

determine whether to deviate from the support guidelines.         These factors

include:

              (1) unusual needs and unusual fixed obligations;

              (2) other support obligations of the parties;

              (3) other income in the household;

____________________________________________


3
    The trial court reasoned:

              Under the guideline calculation proposed by the
              Master, [Mother] was awarded 58.6% of the parties
              joint income while she has 57.1% of custody time,
              whereas [Father] was allocated 41.4% of the parties'
              joint income, while he has custody for 43% of the
              time. To achieve a proportionate allocation of
              household income described in Rule 1910.16-
              4(c)(2), this court applied an adjustment of $322.13
              to [Father]'s basic support obligation (as opposed to
              $205.69 used by the Master on line 12 of the
              Support Guideline Calculation), resulting in a support
              obligation where [Father]'s proportionate share of
              the basic support obligation was 43%, correlating
              with 43% of custody time he has with the child.

Trial Court Opinion, at 6.




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            (4) ages of the children;

            (5) the relative assets and liabilities of the parties;

            (6) medical expenses not covered by insurance;

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

            (8) in a spousal support or alimony pendente lite
            case, the duration of the marriage from the date of
            marriage to the date of final separation; and

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

Pa.R.C.P. No. 1910.16-5 (emphasis added). Based on its analysis of the

above-factors, the trial court may then deviate from the preliminary analysis

figures calculated in the first two parts of the child support calculation,

described   supra.    See    McCarty     v.   Smith,    655    A.2d   563,   566

(Pa.Super.1995) (if a deviation is applied, it must be made after the

guideline amount is determined).

     There is a rebuttable presumption that the support guidelines provide

the appropriate amount of support. See Pa.R.C.P. No. 1910.16-1(d); 23

Pa.C.S. § 4322(b). Our Supreme Court has explained:


            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

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            present such as to render an award in the amount of
            the guideline figure unjust or inappropriate.

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

      Here, the trial court deviated from the guidelines under Rule 1910.16-

4(c)(2) based on its application of Rule 1910.16-5. Trial Court Opinion at 6.

      The trial court explained:

            In reviewing the guideline calculation formulas, this
            court noted that subsection (c)(2) specifically
            provides that, in the instance of an equally shared
            custody arrangement, if the obligee has a higher
            income than the obligor, the support obligation must
            be adjusted so that the obligee does not receive a
            larger share of the parties combined income: ‘In all
            cases in which the parties share custody equally and
            the support calculation results in the oblige[e]
            receiving a larger share of the parties' combined
            income, then the court shall adjust the support
            obligation so that the combined income is allocated
            equally between the two households.’ Id.

                  Since the examples in subsection (c)(1) of Rule
            1910.16-4 concerning substantial shared custody
            only discuss instances where the obligor has a higher
            income than obligee, it was not unreasonable to
            conclude that in the instant situation, where the
            parties have an arrangement just slightly less than
            an equally shared arrangement, and obligor has a
            lower monthly income than obligee, an adjustment
            was appropriate so that obligee would not receive a
            share of the parties combined income which is
            greater than her share of custody, as would be
            applicable    in   an   equally    shared    custody
            arrangement.

                   It cannot be concluded that the support
            guidelines provide for an equal (and proportionate)
            allocation of household income only where the
            parties have equally shared physical custody, while
            disallowing a deviation to achieve a proportionate
            allocation of household income where a party has

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           only slightly less than an equally shared physical
           custody arrangement. Moreover, subsection (c)(1)
           states that the formula in subsection (a) II is
           applicable, except as provided in subsection (c)(2)
           and (3), thus referencing the rationale in those
           subsections.

                                    ***

           This court has thus applied a deviation to the
           Support Guideline Calculation submitted by the
           Master, incorporating the instructions in Rule
           1910.16-4 for equally shared custody arrangements
           to avoid a higher allocation of income to
           [Mother]/obligee than is consistent with her share of
           custody. The court finds that this is a relevant
           and appropriate consideration under Rule
           1910.16-5(b)(9), the application of which
           prevents an award which would be unjust, per
           the standard of Rule 1910.16-1(d).

Trial Court Opinion at 5-6 (emphasis added).

     The trial court further reasoned: “While the methodology was outlined

for use in equally shared custody arrangements, this court concludes that it

was appropriate to apply [the] same to [Father]’s substantially [equal]

custody arrangement to avoid an unjust result.” Trial Court Opinion at 7.

     We have reviewed the transcripts, the briefs, the relevant law, and the

record as a whole and conclude that Judge Pechkurow’s opinion thoroughly,

comprehensively and correctly disposes of the issues Father raises on

appeal. In particular, Judge Pechkurow correctly determined that she had

discretion under Rule 1910.16-5(b)(9) and Rule 1910.16-1(d) to apply Rule

1910.6-4(c)(2) in the instant matter to avoid an unjust result, because

Father and Mother have nearly equal custody, and Father has a lower


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income. Trial Court Opinion at 5-6. Accordingly, we affirm on the basis of

Judge Pechkurow’s opinion and direct the parties to attach copies of said

opinion in the event of further proceedings in this matter.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2014




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