J. A01043/15

                                 2015 PA Super 108

J.P.D.                                         :         IN THE SUPERIOR COURT OF
                                               :               PENNSYLVANIA
                      v.                       :
                                               :
W.E.D.,                                        :             No. 775 WDA 2014
                                               :
                            Appellant          :


                   Appeal from the Order Entered April 14, 2014,
                in the Court of Common Pleas of Allegheny County
                  Family Court Division at No. FD 96-003833-005


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND DONOHUE, JJ.


OPINION BY FORD ELLIOTT, P.J.E.:                                    FILED MAY 05, 2015

         This is an appeal from a child support order entered in the Court of

Common Pleas of Allegheny County requiring appellant, W.E.D. (“Father”),

to pay $1,365 per month for the support of his two children retroactive to

May 1, 2013. We affirm.

         Father and appellee, J.P.D. (“Mother”), are the parents of two children,

V.D., born in 2003, and W.D., born in 2006.                   The parties divorced on

November       3,   2008.      Pursuant   to       the   parties’   Property   Settlement

Agreement, a consent order was entered on September 11, 2008 awarding

Mother the allocated monthly amount of $1,500 for child support and $300

for alimony for a period not to exceed 60 months, the term to expire on

August 31, 2013.
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      On May 1, 2013, Father filed a petition seeking modification of his child

support order due to the upcoming expiration of the alimony term.            On

September 6, 2013, the parties appeared before Hearing Officer Peggy

Ferber. At the conclusion of the hearing, Hearing Officer Ferber terminated

the alimony and modified the child support order to $1,500 per month on an

interim basis pending conclusion of the proceedings.

      The hearing continued on December 5, 2013.         The parties appeared

with their experts who had assessed Father’s earning capacity for the

purpose of calculating his child support obligation. Father’s expert assessed

him an earning capacity of $45,725 per year.         Father’s expert took into

account the earnings of a computer operator and network administrator with

Father’s level of experience.    Father has no formal education and is no

longer personally certified, factors which lessen his potential to earn a higher

paying salary. Father testified he works approximately 50 hours a week and

earns a salary of $20,000. Mother’s expert assessed an earning capacity of

$70,833 per year to Father.

      There was no issue regarding Mother’s income. Mother is employed as

an elementary school teacher and beginning in September of 2013 was

scheduled to earn a salary of $51,903 for the 2013-2014 school year.

Mother testified her net monthly income was $2,979.39 and her monthly

budget ranges from $3,820 to $4,320.




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     Following    the   hearing,   Hearing    Officer   Ferber   entered   a

recommendation and temporary order directing Father to pay $926.65

monthly to Mother retroactive to May 1, 2013.            Mother filed timely

exceptions in which she argued the hearing officer erred in crediting the

testimony of Father’s expert over that of her expert; the hearing officer

failed to add back 100% of Father’s expenses that Father testified were paid

by his current wife; and the hearing officer erred in failing to grant a

deviation under Pa.R.C.P. 1910.16-(b)(3), (5), and (7).          Father filed

cross-exceptions stating the hearing officer erred in determining his annual

income.1

     Following oral argument, the trial court sustained, in part, Mother’s

and Father’s exceptions. The trial court determined Father’s income for child

support purposes should be calculated at $3,694 per month. This figure was

arrived at by using Father’s expert’s earning capacity of $45,725 per year,

$8,880 per year in non-taxed car and phone benefits were added to Father’s

yearly gross income, and applying applicable taxes.     Mother’s net monthly

income was increased to $3,135 per month. At Mother’s request, the trial

court assigned both dependency exemptions from the children to her for tax

purposes.   Using $3,394 per month for Father and $3,135 per month for

Mother, and after applying the appropriate shared custody adjustment,


1
  While the hearing officer stated she found Father’s expert more credible
than Mother’s expert, she proceeded to use the earning capacity favored by
Mother’s expert.


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Father’s guideline child support per month equaled $665. However, the trial

court added an upward deviation of $701 due to the substantial additional

income in Father’s household.      As of May 1, 2013, Father’s total child

support award was set at $1,365. Father filed a timely appeal.

      The sole issue for our consideration is as follows:

            Did the trial court err and abuse its discretion in
            ordering a deviation from the presumptively correct
            recommended guideline amount of child support
            when the deviation ordered was in an amount
            greater than 100% of the actual guideline amount of
            child support, contrary to the evidence presented at
            trial and in an amount that is punitive and
            confiscatory?

Father’s brief at 6.

      Our standard of review in child support matters is well settled:

                   Appellate review of support matters is
            governed by an abuse of discretion standard. 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. An
            abuse of discretion is [n]ot merely an error of
            judgment, but if in reaching a conclusion the law is
            overridden or misapplied, or the judgment exercised
            is manifestly unreasonable, or the result of partiality,
            prejudice, bias or ill-will, as shown by the evidence
            of record. The principal goal in child support matters
            is to serve the best interests of the children through
            the provision of reasonable expenses.

R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa.Super. 2013) (citations and quotation

marks omitted).




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     Support actions are governed by the Pennsylvania Rules of Civil

Procedure 1910.1 through 1910.50.          Initially, Pa.R.C.P. 1910.16-1(d)

provides:

            Rule 1910.16-1.     Amount of Support. Support
            Guidelines

            (d)   Rebuttable Presumption.         If it has been
                  determined that there is an obligation to pay
                  support,    there   shall   be    a   rebuttable
                  presumption that the amount of the award
                  determined from the guidelines is the correct
                  amount of support to be awarded. The support
                  guidelines are a rebuttable presumption and
                  must be applied taking into consideration the
                  special needs and obligations of the parties.
                  The trier of fact must consider the factors set
                  forth in Rule 1910.16-5.      The presumption
                  shall be rebutted if the trier of fact makes a
                  written finding, or a specific finding on the
                  record, that an award in the amount
                  determined from the guidelines would be
                  unjust or inappropriate.

Pa.R.C.P. 1910.16-1(d). Next, as directed, we turn to Pa.R.C.P. 1910.16-5

which provides:

            Rule 1910.16-5. Support Guidelines. Deviation

            (a)   Deviation. If the amount of support deviates
                  from the amount of support determined by the
                  guidelines, the trier of fact shall specify, in
                  writing or on the record, the guideline amount
                  of support, and the reasons for, and findings of
                  fact justifying, the amount of the deviation.

                       Note: The deviation applies to the
                       amount of the support obligation
                       and not to the amount of income.




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              (b)   Factors. In deciding whether to deviate from
                    the amount of support determined by the
                    guidelines, the trier of fact shall consider:

                    (1)   unusual needs and unusual fixed
                          obligations;

                    (2)   other support obligations of the
                          parties;

                    (3)   other income in the household;

                    (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. 1910.16-5.

         On appeal, Father argues the upward deviation, which was an amount

greater than 100% of the actual guideline amount of child support, is

punitive and confiscatory as well as contrary to the evidence presented at

trial.    We first consider the evidence presented which the trial court

summarized as follows:


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                    Father testified that he does not pay for any of
            his own expenses, such as mortgages, car payments,
            utilities, or entertainment.        The couple earns
            approximately one million dollars in annual net
            income.      Wife owns several successful recruiting
            companies in many different industries including
            accounting, engineering, office professionals and
            business. Father and his new wife own multiple
            properties including their residential home, which
            was purchased for $360,500; a weekend townhouse
            in Seven Springs, which Father testified cost more
            than $100,000; as well as a lot bought from Wife’s
            parents which was purchased for approximately
            $240,000. Father also testified he leases a 2011
            Cadillac for a monthly payment of $940.

                   Additionally, Father testified that Wife takes
            care of all finances in the home.         Father could
            provide little information when asked about
            household expenses, admitting he does not even
            open the mail. Not only does Wife’s income provide
            Father with all his daily needs, Wife’s income
            provides Father the opportunity to travel and take
            vacations. Based on Father’s testimony, Father has
            demonstrated that the other household income in
            the home provided by his Wife is more than
            sufficient to pay for any essential needs as well as a
            multitude of luxuries. Thus, it is clear that Father’s
            entire income is available for child support purposes.

Trial court opinion, 7/9/14 at 7.

      In his brief, Father states that “[w]hile he does not actually write the

checks, he contributes to the payment of the expenses.” (Father’s brief at

16.) Additionally, he complains “it was unreasonable for the Trial Court to

determine, as it did, that Father contributes nothing to the expenses of his

household, does not pay for any of his own expenses or necessities, or does

not rely on his income to support himself or his wife.” (Id.)



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      Our review indicates Father’s own testimony belies his argument.

Father was asked if he paid his own expenses, and he replied, “I pay no

household bills.” (Notes of testimony, 12/5/13 at 53.)

            Question: You don’t pay the mortgage, the taxes or
            anything like that?

            Father: I don’t even open the mail. My wife does all
            that.

            ....

            Question: So you have absolutely no idea how much
            your family spends each month?

            Father: I don’t pay the bills. We have been through
            this many, many times.

Id. at 53, 55.

      Based on the evidence presented, we find the record supports the trial

court’s determination that all of Father’s income was available for child

support.

      Having determined that the evidence presented at trial was not

contrary to the trial court’s finding that all of Father’s income was available

for child support, we turn to the crux of this matter, that is, the upward

deviation amount that is more than 100% of the guideline amount. Father

points out the trial court relies on the case of Suzanne D. v. Stephen W.,

65 A.3d 965 (Pa.Super. 2013); however, Father posits the case is factually

distinguishable.




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     In Suzanne D., one of the primary issues was whether the substantial

monetary gifts that Father received from his grandfather should be

considered income for child support purposes.     The record indicated that

Father’s monthly income was almost doubled by his grandfather’s gifts. Id.

at 973. In deciding the monetary gifts could not be considered income for

child support purposes, we observed that the domestic relations statute does

not define gifts as income.2   Id. at 972.   We explained:    “Monetary gifts

from family members are a common practice, and would not have been

unknown to the drafters of the statute. Had the General Assembly wished to

include gifts as income for support, it would have done so.” Id.



2
           “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 source.

23 Pa.C.S.A. § 4302.


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      However, this court reasoned that the monetary gifts could be

considered in awarding an upward deviation under Pa.R.C.P. 1910.16-5(a).

The trial court determined these substantial monetary gifts had been made

regularly since 2004, and based on grandfather’s testimony, the gifts would

continue. In addition to the disparity in income between Father and Mother,

the court also noted grandfather paid for other expenses incurred by the

children; such as, medical expenses, extracurricular activities, private school

tuition, as well as Father’s legal expenses.   (Id. at 973.)   The trial court

concluded an upward deviation of $500 per month was called for.3 We found

no abuse of discretion in this regard.

      Instantly, Father   complains his and Mother’s incomes are not

disparate, but rather comparable. While that may be true, Mother does not

live with a new spouse who nets one million dollars per year in income.

Similar to the grandfather in Suzanne D., Father’s new wife, Susan,

provides a substantial amount, if not all, of the income for household

expenses as well as paying for Father’s and the children’s medical expenses

through her business.     The trial court recognized the $701 deviation was

large, but explained:

                  Pa.R.C.P. 1910.16-5(b)(3) provides that other
            household income may be a factor to consider when
            deciding whether to deviate from the support
            guidelines.   In this particular case, the other

3
 Father was ordered to pay $1,347 per month for one year, and $1,547 per
month thereafter.    The $500 upward deviation was approximately a
32½% deviation.


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            household income provided by Father’s new wife,
            Susan, allows Father to have a higher percentage of
            his income available to pay his child support
            obligations. The support guidelines presume that
            part of the obligor’s income will be spent on his/her
            own expenses and necessities.        Testimony from
            Father at the December 5, 2013 hearing, revealed
            that Father does not pay for any of his own expenses
            or necessities and therefore does not rely on his
            income to support himself or his wife.

Trial court opinion, 7/9/14 at 6. The trial court noted Father would not be

paying over 50% of his net monthly income toward child support. (Id. at

8.)   Father’s total combined child support obligation is $1,365 per month

that includes the $665 guideline child support plus $701 upward deviation.

The trial court observed that this amount is approximately 37% of Father’s

earning capacity which allows Father to retain over 50% of his earning

capacity for himself. (Id. at 9.) We find no abuse of discretion. See Ricco

v. Novitski, 874 A.2d 75, 82 (Pa.Super. 2005), citing Ball v. Minnick, 606

A.2d 1181, 1191 (Pa. 1992) (It is well settled that “a court has reasonable

discretion to deviate from the guidelines if it appears to be necessary and

the record supports the deviation.”).

      Father’s contention that the upward deviation awarded by the trial

court is unjust and confiscatory rings hollow. “Both parents have an equal

obligation to support their children in accordance with the capacity and

ability of each to do so.” Sutliff v. Sutliff, 489 A.2d 764, 771 (Pa.Super.

1985), affirmed, 528 A.2d 1318 (Pa. 1987).




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            A parent is required to sacrifice personal luxuries to
            provide his or her children with their needs. The
            only limitation is that a support order should allow
            for reasonable living expenses of the paying parent
            and not be punitive or confiscatory.

Id. (internal citations omitted). We would be hard-pressed, on this record,

to find that the upward deviation does not allow for Father’s reasonable

living expenses.    While Father complains the 100% upward deviation is

outrageous, again, based on this record, we disagree. Father can well afford

an additional $701 per month for the support of his two children. If Father’s

circumstances change, i.e., his household income decreases, he can always

petition for modification.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2015




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