J-S36032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.L.S.,                                        IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

D.W.C.,

                        Appellee                   No. 1691 MDA 2015


                Appeal from the Order September 1, 2015
              In the Court of Common Pleas of York County
  Domestic Relations at No(s): 00862-SA-2010 DRO 100292 PACSES No.
                               164111616

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED MAY 17, 2016

      Mother appeals from the child support order entered in the Court of

Common Pleas of York County. After a careful review, we affirm.

      The relevant facts and procedural history are as follows: D.C., who

was born in March of 2007, is the minor child of Mother and Father.

Pursuant to a stipulated order, the parties equally share legal and physical

custody of D.C.     On March 26, 2015, Mother filed a petition for a

modification of the stipulated order and the matter proceeded to a support

conference, following which Father was ordered to pay $501.59 per month in

child support plus arrears through May 8, 2015. Father filed a timely appeal

to the trial court, and on September 1, 2015, a hearing was held before the

Honorable Andrea Marceca Strong.



*Former Justice specially assigned to the Superior Court.
J-S36032-16


        At the hearing, Debra Swan Sylvester, an employee of PNC Bank

("PNC") testified that Mother established an investment account with PNC in

March of 2014, and the funds deposited into the account consisted solely of

those inherited by Mother upon the death of her grandfather. N.T., 9/1/15,

at 7.     She noted that during 2014 the account earned a dividend of

$1,690.00, which Mother reinvested into the account. Id. at 8. She further

noted that during 2014 Mother made no withdrawals from the account, but

that a $601.83 management fee was paid from the account. Id. at 8-9.

        Ms. Sylvester testified that Mother had communicated to her that for

2015 she planned to have the interest and dividends earned from the

account, estimated to be $1,560.00 for the year, distributed to her. Id. at

10. Mother also planned to have the management fees for 2015 deducted

from the account. Ms. Sylvester testified that, as of January 1, 2015, the

balance in the account was $122,092.73; however, as of the close of

business on August 31, 2015, the balance in the account was $106,579.56.

Id. at 8, 11.

        On cross-examination, Ms. Sylvester acknowledged the beginning

balance of the account, when it was initially opened in 2014, was

$116,523.00. Id. at 13. She further acknowledged that, since the account

consists of a variety of mutual funds, the value of the account fluctuates

with market conditions. Id. She indicated Mother opened the investment

account, and there was no indication it was a condition of her inheritance.


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Id. Ms. Sylvester admitted that during 2015 Mother took distributions from

the account totaling $14,500.00.       Id. at 15.      Ms. Sylvester noted that

Mother could freely withdraw from the account without a penalty. Id. at 16.

      Mother testified that she has a high school diploma and is currently

employed by Durham School Services as a part-time school bus driver. Id.

at 21. She indicated that, in the past, she worked at a hospital as a nurse's

aid earning $9.00 per hour, but ceased this employment when she became

an emergency medical technician earning $12.64 per hour. Id. at 21, 32.

She then worked as a receptionist in a doctor's office earning $15.00 per

hour but ceased this employment. Id.           After she gave birth to D.C., she

began driving a school bus and continues to do so, working approximately

20 hours per week. Id. at 22. She earns approximately $800.00 per month

as a school bus driver and her mortgage is $678.00 per month.          Id. She

noted she pays $3,000.00 per year in property taxes, as well as various

utility and credit card bills. Id. at 22-23.

      Mother testified the monthly mortgage and other bills exceed her

monthly income, thus requiring her to “dip” into her investment account.

Id. at 24-25. Mother agreed that in past hearings she failed to disclose the

existence of the investment account. Id. at 29. Mother admitted that she

works only part-time, but indicated she has done so for almost ten years and

it suits her well. Id. at 22, 30. However, she also indicated that it was the

only work she could “find at this moment.” Id. at 30. She noted that since


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2013 she has applied for medical jobs, veterinarian jobs, “any job,” but has

received “no callbacks.”   Id. at 30-31.   Mother acknowledged that Father

was ill and during his illness she received no child support. Id. at 31. During

this time, she filled out approximately eight to ten employment applications.

Id.

      Mother acknowledged she is permitted to freely withdraw money from

her investment account. Id. at 32. She also acknowledged that in March of

2014 she purchased a new house for $199,000.00; however, she only took

out a $50,000.00 mortgage. Id. at 33. Mother explained that her parents

gifted to her the majority of the money needed to purchase the house. Id.

      Father's counsel confronted Mother with her tax return, which

indicated that in 2014 Mother received a “gross foreign source income of

$6,111.00.” Id. at 35.     However, Mother denied knowing anything about

the money, despite the fact she signed the tax return form. Id. She also

denied that the tax return was wrong, although she could not explain the

source of the “gross foreign source income,” and she denied having any

other investment or trust accounts. Id. at 35-36.

      Mother explained that, if she worked full-time, she would incur

additional child care expenses and she noted that various positions are not

appropriate to accommodate her shared custody arrangement.          Id. at 39.

Mother noted that, from September of 2014 until spring of 2015, she

received no child support from Father due to his illness. Id. She took the


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first withdrawal from the investment account in January of 2015 in order to

“make ends meet.”     Id. at 40.    Since that time, she has taken additional

withdrawals from the account in order to make her mortgage payment and

pay her bills. Id. She denied that her family gifts her money on a regular

basis and she does not anticipate making future withdrawals from the

investment account as long as Father continues to make child support

payments. Id. at 41-42. She indicated that she will continue to look for a

different job. Id. at 42.

      Father testified that in June of 2014 he was diagnosed with stage 4

neck and throat cancer, resulting in him being unable to work or make his

child support payments beginning in September of 2014. Id. at 43. Father

testified that he applied for Social Security Disability Income benefits

(“disability benefits”) for himself and Social Security Disability Income

derivative benefits (“derivative benefits”) for D.W.    In May of 2015, he

began receiving $2223.00 in disability benefits for himself, and $1,130.00 in

derivative benefits for D.W. Id. at 44.     At this time, he started to again

make child support payments to Mother in the amount of $550.00 per

month. Id. at 44. However, he noted that, in approximately June of 2015,

pursuant to a Maryland court order, he began making a child support

payment in the amount of $950.00 per month for his daughter who lives in

Maryland.   Id. at 45.      This amount is taken directly from his disability

benefits, and thus, he now receives $1,370.00 per month for himself and


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$565.00 per month in derivative benefits for D.W.         Id. at 46.    Father

testified that he is unable to work and he does not anticipate being able to

work in the near future. Id. at 47. Father testified that, prior to the instant

proceedings, he was unaware that Mother has an investment account and, in

fact, when he asked Mother in the past if she had any other income, she

always indicated negatively. Id. at 47-48.

      On cross-examination, Father admitted that Mother began driving a

school bus in 2007, prior to the parties' separation, and the Domestic

Relations Office has historically assigned Mother an earning capacity

consistent with her actual income.     Id. at 48.   Father admitted that, on

October 11, 2014, he received a letter informing him that he had qualified

for disability benefits; however, he did not so inform Mother until May of

2015. Id. at 50-51. Father noted that he did not receive his first disability

payment until March or April of 2015, and he then informed Mother that his

disability claim had been approved. Id. at 52.

      Father acknowledged that during his illness his parents gave him

money; however, he is expected to pay back at least part of it. Id. at 53.

He noted his parents have already asked for repayment of some of the

money but he has been unable to meet their requests. Id. at 53. Father

noted that prior to his illness he was earning $72,000.00 per year; however,

from October of 2014 until May of 2015, the time during which he made no




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child support payments, Father had no income from any source. Id. at 53-

54.

      At the conclusion of the hearing, the trial court directed in open court

the following:

            The Court has considered the evidence presented today.
      We do incorporate the joint stipulation of fact into the record as
      well as [the exhibits].

            In consideration of the evidence presented today, the
      Court finds that no child support is warranted. We find it
      unreasonable for [Mother] to rely on the child support and part-
      time earnings. Averaging out her earnings at this time would
      mean that she earns approximately $5.60 per hour if she were
      to work full-time.

             She’s been stating since 2013 in court records that she
      was seeking full-time employment. It is unrealistic that she has
      been unable to secure some form of [full-time] employment
      since that time, and therefore, based on her earning capacity, an
      amount she could reasonably earn given her age and education
      without any noted disability, the Court finds that she has the
      ability to make at least $20,000 if she were to earn $10 per
      hour. Based on her work history, she has a history of earning
      substantially more, however, we believe it’s unreasonable to
      hold her to a higher earning capacity based on the
      circumstances.

            We note that the parties reached an agreement that she
      would engage in part-time employment while the parties were
      residing together. [D.C.] was not of school age. [D.C.] is now
      eight years old and of school age, which would permit her an
      opportunity to work during the day. Working 20 hours per week,
      particularly in light of the fact that she only has 50 percent
      custody, it is is unreasonable to expect [Father] to support
      [Mother] in this capacity.

             In further support of the finding that no [child] support is
      warranted, we do note that [Mother] does receive significant
      distributions through an account that she has established last
      year. Based on how much she has earned thus far in 2015, she
      is on target to earn from distributions $21,000 this year. We

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      note that even if she were only taking distributions of $1,500 per
      month, she would take distributions in the sum of $18,000 a
      year. Again, based on the equalization of income in addition to
      those distributions and the income she earns, the Court finds
      that her earning capacity is equal to [F]ather’s.

            We do find and take into consideration the derivative
      benefit that [D.C.] receives. Based on the support guidelines
      and the amendments to the support guidelines, the benefit is to
      be paid to the obligee to equal the incomes of the parties in
      consideration of the equally shared custody. We do make this
      decision based on the circumstances involved in this case.

            We do not excuse [F]ather’s support obligation for [D.C.]
      due to a support obligation in Maryland. That’s on [Father] to
      address in the Maryland Courts.        We make no finding or
      adjustment to that amount. We do take into consideration that
      he does have an obligation to another child, however, we do not
      take into consideration the amount of the obligation.

                                      ***

            The effective date of this Order is today. We find that the
      arrears balance will be zero. [Father] will receive no credit for
      any payments he made this year, and [Mother] will receive no
      additional arrears balance. It is to be set at zero effective today.

N.T., 9/1/15, at 55-58. Moreover, the trial court clarified that the derivative

benefit will “continue to go to [Father] at this point.” Id. at 58.

      Mother filed a timely notice of appeal, and all Pa.R.A.P. 1925

requirements have been met.

      On appeal, Mother contends the following:

      1. Did the trial court err as a matter of law and/or abused [sic]
         its discretion in determining that Mother’s withdrawals from
         her investment account were income to be used for purposes
         of calculating the parties’ respective child support obligation?

      2. Did the trial court err as a matter of law and/or abused [sic]
         its discretion in determining Mother’s earning capacity is
         equivalent to that of Father’s earning capacity for child

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          support purposes when Mother’s withdrawals from her
          investment account were a result of the fact that Mother was
          not receiving child support for a period of time?

       3. Did the trial court err as a matter of law and/or abuse its
          discretion in determining that the order for support docketed
          to the above-captioned matter should be terminated?

Mother’s Brief at 1.1

       Initially, we note that “[t]he 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). A

support order will not be disturbed on appeal unless the trial court failed to

consider properly the requirements of the Rules of Civil Procedure governing

actions for support or abused its discretion in applying those rules. See

Morgan v. Morgan, 99 A.3d 554, 559 (Pa.Super. 2014).

             On appeal, a trial court's child support order will not be
       disturbed unless there is insufficient evidence to sustain it or the
       court abused its discretion in fashioning the award. An abuse of
       discretion is not 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 evidence on the record,
       discretion is abused.

            Thus, a reviewing court does not weigh the evidence or
       determine credibility as these are functions of the trial court.




____________________________________________


1
  We have renumbered Mother’s issues for the ease of discussion. We note
these precise issues were also presented in Mother’s court-ordered Pa.R.A.P.
1925(b) statement.



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Doherty v. Doherty, 859 A.2d 811, 812 (Pa.Super. 2004) (quotation and

citations omitted).

      Under the Support Guidelines, the amounts calculated thereunder are

presumed to be the correct amounts of support. Pa.R.C.P. 1910.16-1(d).

However, this presumption can be rebutted where the fact finder determines

that the award “would be unjust or inappropriate.” Id.

      In her first issue, relying upon Humphreys v. DeRoss, 567 Pa. 614,

790 A.2d 281 (2002), Mother contends the trial court erred in concluding

that her withdrawals from her investment account, which she established

after receiving an inheritance from her grandfather, constituted income for

child support purposes.    She further contends the trial court improperly

considered the withdrawals she made from the account in deviating from the

support guidelines.

      “The starting point for calculation of a parent's child support obligation

is a determination of each party's income available for support.” Mencer v.

Ruch, 928 A.2d 294, 297 (Pa.Super. 2007) (citation omitted). The term

“income” is defined in the Domestic Relations Code, 23 Pa.C.S.A. §§ 101-

8215, 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;

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      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 (bold in original).

      In interpreting the meaning of Section 4302, our Supreme Court has

held that “in order to be included in the statutory definition of income, a

resource must reasonably fit within one of the categories enumerated in

Section 4302.”    Humphreys, 567 Pa. at 619, 790 A.2d at 284. As it

specifically relates to an inheritance, our Supreme Court has held that the

corpus or principal of an inheritance is not income for purposes of calculating

a monthly child support obligation.       See id.   However, as this Court has

held, although the corpus of an inheritance may not be considered as income

available for support, to the extent the inheritance makes more income

available, it may be considered when adjusting a support obligation. E.R.L.

v. C.K.L., 126 A.3d 1004 (Pa.Super. 2015).

      In explaining the manner in which it considered the investment

account at issue for purposes of calculating Mother’s income, the trial court

explained as follows in its Pa.R.A.P. 1925(a) Opinion:

            Evidence was presented that [Mother] inherited [money]
      from her grandfather and that it was placed in an account
      comprised of a variety of mutual funds. . . The Court considered
      that [Mother] is provided with income through capital gains and

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     dividends. [Mother] has made withdrawals of the capital gains
     and dividends generated by the interest from the account.
     There is no limit on how much [Mother] may withdraw in
     dividends from the account, nor is there a penalty for
     withdrawing dividends.

            [Mother] has taken approximately $14,500 in. . .
     distributions from the account thus far in 2015 and further
     dividends will be distributed for the remainder of the year. While
     [Mother] does withdraw some of the capital gains, she also
     reinvests many of the distributions back into the account. This
     Court followed the well-established law stated in Humphreys v.
     DeRoss[, supra] when considering [Mother’s] income for
     support purposes. The Court did not consider [Mother’s]
     inheritance as income, but instead held her to the distributions
     and dividends from mutual funds, which do constitute income as
     defined by 23 Pa.C.S.[A.] § 4302.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed 12/4/15, at 2-3 (citation

omitted).

     Based on the aforementioned, we conclude the trial court did not

improperly treat the corpus of Mother’s inheritance as income for the

purpose of calculating her income for child support purposes.     Rather, as

the evidence revealed, Mother placed the money she inherited into an

investment account consisting of mutual funds, which have been income-

producing. For instance, Ms. Sylvester of PNC acknowledged the beginning

balance of the investment account, when it was established in 2014, was

$116,523.00; however, as of January 1, 2015, the balance had increased to

$122,092.73. Simply put, we find the trial court did not abuse its discretion

in this regard. See Doherty, supra.




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      In her next issue, Mother contends the trial court erred in determining

that her earning capacity is equivalent to Father’s earning capacity for child

support purposes. In this regard, Mother asserts that she “has always been

held to essentially the same earning capacity since the parties first

separated and was established at the initial support conference.” Mother’s

Brief at 7 (citation to record omitted).     She further asserts the trial court

erred in concluding she was “underemployed,” thus assigning her an earning

capacity rather than relying on her actual earnings.

      “Although a person’s actual earnings usually reflect h[er] 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) (citation omitted).

      Age, education, training, health, work experience, earnings
      history and child care responsibilities are factors which shall be
      considered in determining earning capacity. In order for an
      earning capacity to be assessed, the trier of fact must state the
      reasons for the assessment in writing or on the record.
      Generally, the trier of fact should not impute an earning capacity
      that is greater than the amount the party would earn from one
      full-time position. Determination 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.

Pa.R.C.P. 1910.16–2(d)(4).

      In its Pa.R.A.P. 1925(a) Opinion, the trial court relevantly indicated the

following:


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            The Court. . .considered [Mother’s] income from her
      current employment. [Mother] stated that she currently drives a
      high school bus, working about 20 hours per week and that she
      makes approximately $800 per month. Based on the evidence
      presented, the Court considered that [Mother’s] monthly income
      from her job and dividends exceeds her monthly expenses.

            This Court further considered that [Father] is not currently
      working because of his diagnosis of Stage 4 neck and throat
      cancer. We noted that [Father’s] derivative benefits from his
      disability payments are currently being used to support [D.C.].
      The Court considered that [Father] does have an obligation to
      another child. Further, the court does note that during the time
      period in which [Father] had ceased making child support
      payments, he was unable to work and had not yet received
      disability payments.     Once disability payments began, he
      recommenced his support payments. We additionally note that
      though [Father] has been paying child support consistently,
      [Mother] continues to withdraw dividends from her investments.

            This Court finds that it is unreasonable for [Mother] to rely
      solely on child support and a part-time job for income, especially
      based on her prior work experience without pursuing a position
      appropriate with her age, education, training, health, work
      experience, earnings history, and child care responsibilities. The
      Court also finds it unreasonable for [Mother] to rely on [Father’s]
      disability payments alone. [Father’s] current inability to work is
      through no fault of his own, while [Mother] has chosen not to
      increase her hours at work or seek a higher paying job.
      [Mother] further receives significant distributions from her
      mutual funds, while assistance [Father] receives from his
      parents is intended to be a loan that he is expected to repay.

                                     ***

             This Court took into account the derivative benefits [D.C.]
      is receiving due to [Father’s] disability payments. We did not
      relieve Father of that obligation, but based on his current
      income, the derivative benefits constitute his proportional share
      of the amount required to support [D.C.]. The Court considered
      all relevant and competent evidence regarding the income of
      both parties. Competent evidence on the record supports the
      outcome.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed 12/4/15, at 3-4.

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      Moreover, in determining Mother’s earnings capacity to be at least

$20,000 per year based on a full-time job of $10.00 per hour, as indicated

supra, the trial court relevantly indicated in its order the following:

             We find it unreasonable for [Mother] to rely on the child
      support and part-time earnings. Averaging out her earnings at
      this time would mean that she earns approximately $5.60 per
      hour if she were to work full-time.

             She’s been stating since 2013 in court records that she
      was seeking full-time employment. It is unrealistic that she has
      been unable to secure some form of [full-time] employment
      since that time, and therefore, based on her earning capacity, an
      amount she could reasonably earn given her age and education
      without any noted disability, the Court finds that she has the
      ability to make at least $20,000 if she were to earn $10 per
      hour. Based on her work history, she has a history of earning
      substantially more, however, we believe it’s unreasonable to
      hold her to a higher earning capacity based on the
      circumstances.

            We note that the parties reached an agreement that she
      would engage in part-time employment while the parties were
      residing together. The child was not of school age. The child is
      now eight years old and of school age, which would permit her
      an opportunity to work during the day. Working 20 hours per
      week, particularly in light of the fact that she only has 50
      percent custody, it is is unreasonable to expect [Father] to
      support [Mother] in this capacity.

N.T., 9/1/15, at 55-56.

      We find no abuse of discretion in this regard. See Doherty, supra.

To the extent Mother takes issue with the trial court’s factual findings

regarding her search for a full-time, better paying job, see Mother’s brief at

7, we note this Court may not re-weigh the evidence or make credibility

determinations. See Doherty, supra. The trial court’s conclusions regarding



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Mother’s ability to work a full-time job, and her lack of searching for

appropriate employment, are supported by the record.              Furthermore, to the

extent Mother contends she has always been held to essentially the same

earning capacity since the parties first separated and was established at the

initial    support   conference,    the   trial    court   explained   the   change   in

circumstances supporting an assignment of an earning capacity to Mother

greater than her actual earnings.         Accordingly, we find no merit to Mother’s

second issue.2

          In her final issue, Mother contends the trial court erred in terminating

child support for D.C.



____________________________________________


2
  Mother contends the trial court directed D.C.’s derivative benefit be paid to
her, and this had the improper effect of designating Mother as the
representative payee of D.C.’s derivative benefit, which is a designation that
may only be made by the Social Security Administration. Mother’s Brief at
8. To support her argument, Mother cites to the portion of the trial court’s
order wherein the trial court stated “the [derivative] benefit is to be paid to
the obligee to equal the incomes of the parties[.]” Id.; N.T., 9/1/15, at 57.
However, Mother fails to recognize that, at the conclusion of its order, the
trial court clarified the derivative benefit will “continue to go to [Father] at
this point.” N.T., 9/1/15, at 58.
       In addition, Mother contends the trial court, contrary to Silver v.
Pinskey, 981 A.2d 284 (Pa.Super. 2009) (en banc), eliminated Father’s
support obligation and ordered him to split D.C.’s derivative benefit with
Mother. See Mother’s Brief at 7-10. Mother did not raise this precise issue
in her Pa.R.A.P. 1925(b) statement, thus it is waived. In any event, this
case is distinguishable from Silver. Here, unlike in Silver, the trial court
attributed the derivative benefit to Father as income, and then found it was
equal to Father’s proportional share of the support order given the parties’
equal custody arrangement.



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      In addition to the reasons set forth supra in support of its order, the

trial court relevantly stated the following in its Pa.R.A.P. 1925(a) opinion:

            Courts may terminate a support order where there has
      been a material and substantial change in circumstances. The
      prior support order was entered in 2010, since which time
      [Mother] began to receive distributions [from her investment
      account] and [Father] was diagnosed with cancer. Both of these
      changes constitute a material and substantial change in
      circumstances from the time of the prior support order.

             It is well settled that each parent is required to contribute
      a share of the child’s needs proportional to that parent’s share of
      the combined net incomes. Pa.R.C.P. 1910.16-1. The Court
      considered the income of each parent and the custodial time
      allotted to each parent when making our determination to
      terminate the support order.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed 12/4/15, at 4-5 (citation

omitted). We agree with the trial court’s reasoning in this regard and find

no abuse of discretion. See Doherty, supra.

      For all of the foregoing reasons, we affirm.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




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