J-A13012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TRACY L. EISENMAN-GOMEZ                      IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                         Appellee

                    v.

FRANK A. GOMEZ

                         Appellant                No. 1596 WDA 2014


                  Appeal from the Order August 26, 2014
           In the Court of Common Pleas of Washington County
                Domestic Relations at No(s): 806 DR 2007


BEFORE: PANELLA, J., SHOGAN, J. and OTT, J.

MEMORANDUM BY PANELLA, J.                       FILED AUGUST 11, 2015

     Father, Frank A. Gomez, appeals from an order entered August 26,

2014, denying exceptions he raised to the report and recommendation of the

Domestic Relations Hearing Officer issued after a hearing on the support

modification petition filed in November 2011 by Mother, Tracy L. Eisenman-

Gomez. We affirm.

     The parties have been involved in divorce and support proceedings

since 2007. They have two sons, aged 19 and 16, as of the date of the

order. Numerous support and contempt proceedings have occurred over the

past 8 years. Relevant to the support and contempt proceedings, and this

appeal, is the existence of funds received by Mother from a trust set up by

her mother.
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      Carol A. Eisenman (”Mother’s Mother”), a resident of Florida, had

established a revocable trust wherein Mother’s Mother was the sole trustee

and beneficiary. The trust was amended and reinstated on October 17,

2006, and all of Mother’s Mother’s assets were allegedly transferred to the

trust prior to her death. Pursuant to the trust agreement, the residue of the

trust estate passed to a trust for the benefit of Mother’s Mother’s husband

and her daughter Tammy. Upon Mr. Eisenman’s demise on May 22, 2007,

the trust estate was to be divided into four equal shares for Mother’s

Mother’s daughters and distributed outright. Between August 2007 and

December    2009,    Mother    received    payments   totaling   approximately

$468,546.36 from the Carol Eisenman trust and $1,848 from a life insurance

benefit.

      The following facts and procedural history, quoted from the Hearing

Officer’s report rendered after a hearing on the 2011 modification petition,

are relevant to this appeal.

      The parties have previously been before this Hearing Officer on
      September 23, 2008, May 6, [2009,] June 22, 2009 (when the
      parties reached an agreement), and January 28, 2010.

      Mother originally filed a Complaint for Support for herself and
      the 2 minor children of the parties on August 22, 2007. On
      September 24, 2007, the Support Complaint was dismissed by
      agreement at the support conference as the parties were still
      living in the same household and the Father had continued to
      pay for the family’s expenses. In spite of the agreement of the
      parties, Mother filed a demand for a de novo hearing. Ultimately,
      a Consent Order was entered on January 3, 2008, [which]
      provided that: “Pending further Order of Court, [Father] shall


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       continue to pay on a timely and regular monthly basis all
       reasonable household expenses.”

       Following the entry of the Consent Order, Mother filed a Petition
       for Contempt and a hearing was held on September 23, 2008.
       Following the hearing, this Hearing Officer recommended that
       the Petition for Contempt be dismissed.

       By Order dated March 26, 2009, the Honorable John F. DiSalle
       granted Mother’s exceptions and remanded the case for “a
       determination of what amount in arrears is owed to the Plaintiff
       from the Defendant for unpaid reasonable household expenses.
       The defendant shall continue to pay all reasonable household
       expenses, as stated above, until a monetary Support Order is
       entered.”

       On May 6, 2009, the parties reached an agreement wherein
       Father would pay $775.00 per month for current support and
       $1.00 per month for arrears for the support of the parties’ two
       children based upon the stipulation of the parties that Mother’s
       gross annual income was $25,000.00 and Father’s gross annual
       income was $50,000.00.

       On October 13, 2009, Mother filed a Petition for Modification and
       a de novo hearing was held on January 28, 2010.[1] This Hearing
       Officer used the previously stipulated incomes of the parties, but
       added mother’s income from a trust established by her
       grandfather in determining the support obligation. Father’s gross
       annual income remained $50,000.00. The support obligation
       changed primarily as a result of mother’s assumption of custody
       of one of the parties’ children, which had previously been equally

____________________________________________


1
  Mother testified in January 2010 that she had withdrawn money in 2009
from a family trust account which had been established by her grandfather
“when she was a little girl” to pay her bills. That is the only trust Mother
mentioned in the January 2010 proceeding. She did not mention the
existence of the Carol Eisenman Trust, funds she had received from the
Carol Eisenman Trust between August 2007 through December 2009, or her
receipt of life insurance proceeds. See Report of Hearing Officer, filed
4/23/14, at R.R. 609a.




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       shared. A mortgage deviation also was considered in arriving at
       the Order.

       Mother filed the instant Petition for Modification on November 8,
       2011. [She alleged that an increase was needed because the
       children were getting older and Father left the younger child with
       Mother most of the time, even though their custody agreement
       stipulated to a 50/50 shared custody.] Following the mandatory
       conference on January 4, 2012, [after which the petition was
       dismissed,] she requested a de novo hearing and then filed a
       new modification petition on July 6, 2012 to add a claim for
       spousal support.[2]

       On March 4, 2013, the Honorable Gary Gilman entered an Order
       related to cross-motions for sanctions filed by the parties. The
       Order included a directive (paragraph 7) indicating: “As Mother
       failed to more timely disclose receipt of $468,546.36, which sum
       shall be imputed to her as the support master determines.”

       At the hearing on July 2, 2013, this Hearing Officer ruled that
       the March 4th Order directed that Mother was to have the sum of
       $468,546.36 imputed to her. Following that hearing, Mother filed
       a Motion for Clarification, Father filed a Reply to Motion for
       Clarification and New Matter [seeking spousal support,] and
       Mother filed a response. By Order dated October 2, 2013, the
       Honorable Gary Gilman denied Mother’s request that the Hearing
       Officer “…determine how to treat the $468,546.36 for support
       purposes… .” Instead, Judge Gilman’s Order provided: “Denied.
       The court directs the parties and the Master to Mencer v. Ruch,
       928 A.2d 294 (Pa. Super. 2007). Therein, the Superior Court
       held that distributions from a trust were to be considered as
       income for child support purposes.”

       [However,] by Order dated October 23, 2013, Judge Gilman, sua
       sponte, amended [his] October 2, 2013 Order[,] indicating:

              [D]istributions from the trust that mother received
              might be treated as if it were in the nature of an
              inheritance and, therefore, should only be used as a
____________________________________________


2
 Neither the lower court docket nor the certified record contains a copy of
Mother’s “new modification petition” allegedly filed on July 6, 2012.



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            reason for deviating from the support guideline
            amount as noted in Humphreys v. DeRoss[,790
            A.2d 281 (Pa. 2002)]. The money received may not
            necessarily be considered as income for support
            purposes. Therefore, the hearing officer shall take
            testimony regarding the source of receipt.

            By way of further explanation, the method by which
            mother received the $468,546.36 is more important
            when      determining     its   character    than   the
            nomenclature. The money may have been a
            distribution from the trust as a method of
            transferring wealth instead of through a traditional
            will in order to avoid certain legal requirements, such
            as probate. As such, the transfer could also be
            characterized as a gift, which is also not considered
            as income. For this reason, the hearing officer should
            take testimony thereon.

Report of Hearing Officer, filed 4/23/14, at 1-3, Reproduced Record (“RR”)

606a- 608a.

      The Hearing Officer held further hearings at which Mother’s expert

witness, a certified public accountant and certified valuation analyst, testified

that she could not separate the trust distributions received by Mother into

interest income and principal. See N.T., 10/15/13, at 77-78. Because of her

inability to separate the distributions into principal and interest, the Hearing

Officer treated the total sum of the distributions “as an inheritance, a gift[,]

or some combination thereof.” Report of Hearing Officer, filed 4/23/14, at 4,

RR 609a. He concluded that “[i]n any case, the principal sum is not ‘income’

for purposes of determining the support obligation. See 23 Pa.C.S. § 4302;

Rule 1910.16-2; Mencer v. Ruch, 928 A.2d 294 (Pa.Super. 2007)




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Humphreys v. DeRoss, 790 A.2d 281 (Pa. 2002); and Maher v. Maher,

835 A.2d 1281 (Pa. 2003).” Id.

       Prior to issuing his recommendation, the Hearing Officer noted Mother

had received income from various part-time jobs, and concluded that her

“actual earnings from employment are substantially below her earning

capacity as previously agreed to by the parties.     [Thus, f]or purposes of

calculating the support obligation, Mother’s earning capacity will continue to

be $25,000 annually.” Id. The Hearing Officer noted that “[o]rdinarily, [he]

would determine what portion of the [Carol Eisenman trust] distributions

were interest and income for purposes of calculating Mother’s net monthly

income. In the present case, however, there is no dispute such a

determination is impossible based upon the evidence at hand.” Id. at 5, RR

610a. The Hearing Officer calculated Mother’s gross annual income to

include $25,000 earning capacity; $2,084 interest income; $15,355 in

dividend income; capital gains of $4,563; and capital gain distributions of

$4,000.3 He determined that her net monthly income is $3,654.77.         After

reviewing Father’s income from numerous sources, the hearing officer

determined that Father’s net monthly income is $4,521.77.


____________________________________________


3
  The Hearing Officer did not delineate from what source of funds the
dividend and interest income derived. He did note that interest from a life
insurance policy is income within the meaning of 23 Pa.C.S. § 4302. Report
of Hearing Officer, filed 4/13/14, at 5-6, RR 610a-611a.



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      The    Hearing   Officer   summarized   his   findings   and   made   his

recommendation requiring Husband to pay $988.00 per month for the time

between November 8, 2011 until June 6, 2013, after which time Husband

was to pay $433.50 per month, plus arrears. This new amount reflected the

emancipation of one child and subsequent removal from the support order

and the continued shared custody of the younger child.

      Father filed exceptions to the Hearing Officer’s recommendation. The

trial court denied Father’s exceptions, and ordered, among other things, the

following.

      Based upon the [c]ourt’s determination [that Mother’s] net
      monthly income is $3,654.77 and [Father’s] net monthly income
      is $4,521.77, between November 8, 2011 and June 6, 2013,
      Father shall pay $988.24 per month for current support.

      Effective June 7, 2013, [following the eldest child’s
      emancipation, Father] shall pay $500 allocated as $433.50 per
      month for current support and $66.50 per month for arrears.

Trial Court Order, dated 8/26/14 at 1. The trial court specified that the

effective date of the order was November 8, 2011. Father timely appealed

to this Court.

      Our standard of review of support orders is well-settled.      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) (citation omitted). “We will

not interfere with the broad discretion afforded the trial court absent an

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

(citation omitted).

      Father first argues that the trial court erred in its treatment of the

$468,546.36 inheritance received by Mother from her mother through a

trust. He avers the court should have considered the inheritance as “income”

for purposes of child support modification.

      The Pennsylvania Rules of Civil Procedure provide support guidelines

for the calculation of net income. See Pa.R.C.P. 1910.16-2. The term

“income” is defined by statutory law and includes an exhaustive list of types

of income, including “income from an interest in an estate or trust[.]” 23

Pa.C.S.A. § 4302. Our Supreme Court has held that the corpus of an

inheritance from an estate is not “income” because the legislature

specifically defined “income” as including “income from an interest in an

estate or trust,” but did not include the principal of an inheritance or trust.

Humphreys v. DeRoss, 790 A.2d 281, 284-85 (Pa. 2002). One year later,

the same Court held that a mother’s inheritance could not be considered

when determining her income, but could be considered as an asset when

determining whether to deviate from the guidelines. See Maher v. Maher,

835 A.2d 1281 (Pa. 2003).

      Husband contends that it was Wife’s burden of proof to differentiate

between principal and interest of the inheritance and thus the court should

have ruled in his favor. See Appellant’s Brief, at 29. “The burden of


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demonstrating a material and substantial change rests with the moving

party, and the determination of whether such change has occurred in the

circumstances of the moving party rests within the trial court's discretion.”

Kimock v. Jones, 47 A.3d 850, 855 (Pa. Super. 2012).

       Here, Mother’s request was for an increase in the amount of child

support Father was to pay.          Thus, her only burden was to prove why an

increase was warranted. See id. See also Pa.R.C.P. 1910.19(a).4 Father, on

the other hand, was seeking a decrease in the amount of child support he

pays to Mother. We are at a complete loss to see how this would be Mother’s

burden. The current Rules and case law do not explicitly address this issue.

However, logic and common sense dictate that Father would bear the burden

of proving a substantial change in circumstance in his favor.

       Father calls to our attention Pa.R.C.P. 1910.19(c), which provides:

       (c) Pursuant to a petition for modification, the trier of fact may
       modify or terminate the existing support order in any
       appropriate manner based upon the evidence presented without
       regard to which party filed the petition for modification.

(emphasis added).

       In accordance with Rule 1910.19(c), as Father notes, the trial court

could modify in either party’s favor after Mother petitioned for an upward

modification. See Brickus v. Dent, 5 A.3d 1281 (Pa. Super. 2010) (holding
____________________________________________


4
  Rule 1910.19(a) provides that “A petition for modification … of an existing
support order shall specifically aver the material and substantial change in
circumstances upon which the petition is based[.]” (emphasis added).



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that the trial court had the authority to increase father’s child support

obligation, even though mother did not file a cross-petition seeking an

increase in support). The court, however, is not required to do so.

Moreover, Rule 1910.19(c) does not change who has the burden of proof in

modification proceedings. Here, because Father was the party in Mother’s

modification hearing seeking a decrease in the support order based upon the

trust distributions, he bore the burden of proving the nature of Mother’s

inheritance payments and their impact on Mother’s income. This he did not

do. In fact, he submitted no expert testimony or any other evidence to

support his request for a change in support based on those payments.

      Based on the above discussion, we conclude that the trial court

properly exercised its discretion in concluding that the distributions received

by Mother were an inheritance not included in the definition of “income” for

support purposes. See 23 Pa.C.S.A. § 4302.

      Father next argues that, even though he did not file his own

modification petition, the trial court erred in not deviating from the child

support guidelines. In particular, he contends that the significant payments

Mother received from the revocable trust warranted a downward deviation.

      A trial court has discretion to deviate from the guideline amount in a

support case, if the record supports the deviation. See Silver v. Pinskey,

981 A.2d 284, 296 (Pa. Super. 2009). In determining whether to deviate

from the guidelines, the trier of fact must consider the following factors:


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              (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 expense not covered by insurance;
              (7) standard of living of the parties and their children;
              (8) in a spousal support or alimony pendent 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(b). “The trier of fact is to consider all the relevant

factors in determining whether a deviation is warranted; any one factor is

not necessarily determinative.” Suzanne D. v. Stephen W., 65 A.3d 965,

972-73 (Pa. Super. 2013) (citation omitted). There is “no legal authority

which allows the court to eliminate Father's support obligation, where he can

reasonably provide for some of Child’s needs.” Ricco v. Novitski, 874 A.2d

75, 83 (Pa. Super. 2005).5

       Father avers that the trial court did not sufficiently consider the fifth

factor, “relative assets of the parties” in its modification order. He is

mistaken. As noted above, both the Hearing Officer and the trial court

considered the assets and liabilities of the parties in determining what the
____________________________________________


5
  Ricco involved a trust in a child’s name where the father sought a
downward deviation from the guidelines because of that trust.            We
concluded that “[r]eleasing Father, as the non-custodial parent, from all
support obligation to Child permits Father to evade his support obligation
through the use of the Trust, even though Father is not the custodian of the
assets of the trust.” Id. at 83.




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appropriate support order should be. Moreover, we note that this Court has

previously stated:

      Above all, we are mindful of the general principle that a parent’s
      duty to support his minor children is absolute, and the purpose
      of child support is to promote the children’s best interests. The
      court has no legal authority to eliminate an obligor’s support
      obligation, where the obligor can reasonably provide for some of
      the children’s needs.

Silver, 981 A.2d at 296 (citation omitted). Father has made no claim that he

cannot afford to pay his child support obligation, or that any change in his

circumstances hinders him from doing so. We thus conclude, in accordance

with the above case law, that the trial court did not abuse its discretion in

applying the child support guidelines.

      Father next avers that the trial court erred by imputing an earning

capacity of only $25,000 to Mother. Specifically, he contends that it was an

abuse of discretion to ignore the Hearing Officer’s observation that Mother’s

income “would certainly be greater” if she had devoted more time to finding

work since that earning capacity was originally imputed to her in 2009.

      With respect to earning capacity, Rule 1910.16-2(d)(4) provides:

      If the trier of fact determines that a party to a support action
      has willfully failed to obtain or maintain appropriate
      employment, the trier of fact may impute to that party an
      income equal to the party’s earning capacity. 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.

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       The Hearing Officer and the trial court chose again to impute to Mother

a $25,000 earning capacity after considering the following findings of fact.

       As previously, mother continues to be employed in various part-
       time positions including teaching Silver Sneakers classes, Senior
       Aerobics and various odd jobs. More significantly, she was
       recently hired for a part-time position with the Women’s
       Business Network which pays $1,000.00 per month. The Hearing
       Officer finds mother continues to be underemployed based upon
       her health, education and experience. Her actual earnings from
       employment are substantially below her earning capacity as
       previously agreed to by the parties. For purposes of calculating
       the support obligation, mother’s earning capacity will continue to
       be $25,000.00 annually.

Report of Hearing Officer, filed 4/23/14, at R.R. 609a.

       Father does not disagree with the factual findings of the court, but

simply argues that the trial court did not apply Rule 1910.16-2(d)(4) and

thus abused its discretion. However, the rule only requires the court to

consider the factors of age, education, training, health, work experience,

earnings history and child care responsibilities in determining earning

capacity. See Morgan v. Morgan, 99 A.3d 554, 558 (Pa. Super. 2014);

Pa.R.C.P. No. 1910.16-2(d)(4). It does not require the court to deviate in

either direction based primarily on any one factor. See Morgan, 99 A.3d at

558.

       The court considered all the factors required by the rule in determining

Mother’s earning capacity, including the fact that Mother’s college degree is

in wildlife husbandry and that she never worked in that field. See N.T., RR.

at 111a, 161a. The court also considered Mother’s testimony in which she

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stated that she had worked with Father in his retail businesses until the birth

of their second child when she became a stay-at-home mom. See id. at

200a-202a. Mother has not been in the work force for many years and has

no significant training in any particular field.

      Father presented no evidence pertaining to Mother’s earning capacity,

despite having had substantial time to acquire evidence or hire a vocational

expert to testify. He has made no effort to provide any indication of what he

believes Mother’s earning capacity should be. Rather, he merely relies on the

following phrase in the Hearing Officer’s report: “[M]other’s earning capacity

would certainly be greater than $25,000 if she had devoted more time to

increasing her earnings rather than promoting a healthy lifestyle.” Report of

Hearing Officer, filed 4/23/14, at R.R. 614a. The entire sentence, however,

is as follows: “The Hearing Officer recommends no spousal support award

which represents a small deviation from the guideline figure of spousal

support because mother’s earning capacity would certainly be greater than

$25,000 if she had devoted more time to increasing her earnings rather than

promoting a healthy lifestyle.” Id. Father thus fails to mention that the

Hearing Officer’s speculative conjecture is limited only to its discussion of

spousal support, and not earning capacity per se. While a husband does not

have an unlimited responsibility to provide spousal support if a wife can

reasonably    provide   for   herself,   a   father   has   a   legal   responsibility,

independent of a mother’s responsibility, to provide for his children “where


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he can reasonably provide for some of the children’s needs.” Ricco, 874

A.2d at 83.

      The trial court did not abuse its discretion in adopting the Hearing

Officer’s recommended earning capacity of $25,000 for Mother since that

number reflected careful contemplation of all the factors required by Rule

1910.16-2(d)(4).

      Father next argues that the trial court erred by failing to provide him

with retroactive relief of his arrears to a date prior to the filing of Mother’s

November 2011, petition because Mother failed to disclose the inheritance

from the revocable trust and a life insurance benefit. He is not seeking

retroactivity to the date that Mother’s most recent petition was filed. Rather,

he avers relief should be applied as far back as 2007, when Mother first filed

for support.

      Our law on retroactive modification of arrears provides:

      No court shall modify or remit any support obligation, on or after
      the date it is due, except with respect to any period during which
      there is pending a petition for modification. If a petition for
      modification was filed, modification may be applied to the period
      beginning on the date that notice of such petition was given,
      either directly or through the appropriate agent, to the obligee
      or, where the obligee was the petitioner, to the obligor.

23 Pa.C.S.A. § 4352(e). Thus, retroactive relief could be applied to the

period beginning on the date of notice of Mother’s petition for modification.

See id.; see also Brickus, supra (a non-petitioning party could be granted

relief retroactive to the date the petitioning party filed their motion). Section


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4352(e) of our Domestic Relations Law explicitly addresses requests for

retroactivity to an earlier period as follows.

      [M]odification may be applied to an earlier period if the
      petitioner was precluded from filing a petition for modification by
      reason of a significant physical or mental disability,
      misrepresentation of another party or other compelling reason
      and if the petitioner, when no longer precluded, promptly filed a
      petition.

23 Pa. C.S.A. § 4352(e).

      The language of the statute is clear and unambiguous that the trial

court cannot grant retroactive relief to a date prior to the filing date unless

(1) the party seeking retroactive relief files a petition for modification and

(2) that party demonstrates that they were precluded from filing for a

modification. Here, Father never filed a petition for retroactive modification

even after learning of Mother’s inheritance. As a result, retroactive relief is

neither appropriate nor warranted.

      Father next argues that the trial court erred in holding that the life

insurance proceeds received by Mother did not constitute income for

purposes of determining Mother’s child support obligation. We disagree.

      Generally, child support is calculated based on the parties’ monthly

income. See Pa.R.C.P. 1910.16-2. As noted above, included in the definition

of “income” is: “income from life insurance and endowment contracts; …

income from an interest in an estate or trust[.]” 23 Pa.C.S.A. §4302. As the

trial court here observed, a one-time payout to a life insurance beneficiary is

analogous to an inheritance. See Trial Court Opinion, dated 11/12/14, at 13,

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and discussion, supra. Since the legislature plainly did not use the phrase

“principal” in the definition of income, and instead specified only “income

from…” life insurance or an interest in an estate or trust, it is logical to

assume that the legislature did not intend to include the lump sum insurance

benefit. See Humphreys, 790 A.2d at 284.

       Here, the recommendation of the Hearing Officer, which was adopted

by the trial court, properly determined that the insurance proceeds of

$14,082.30 that Mother received from her deceased mother’s policy were

not income for purposes of calculating support under Section 4302.6

Accordingly, we cannot conclude that the trial court abused its discretion in

rendering its child support order.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2015



____________________________________________


6
  The Hearing Officer determined that interest for $1,848.00 that Mother
received on the life insurance policy benefit is includable as “income” under
Section 4302. See Trial Court Opinion, 11/12/14, at 14.



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