J-S73018-14 & J-S73019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.R.V.                                            IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

N.V.

                          Appellant                   Nos. 997 MDA 2014
                                                         1196 MDA 2014
                 Appeal from the Order Entered May 12, 2014
              In the Court of Common Pleas of Lancaster County
              Domestic Relations at Nos.: Docket No. 2013-2673
                                          PACSES No. 572114216


BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                          FILED DECEMBER 30, 2014

       N.V. (“Father”) appeals the May 12, 2014 order that set Father’s child

support and alimony pendente lite (“APL”) obligation to M.R.V. (“Mother”).

The order also established the percentages of the unreimbursed medical and

extracurricular expenses for the parties’ children for which Mother and

Father were responsible. After review, we affirm.

       The trial court set forth the following factual and procedural history:

       A support complaint was filed on September 12, 2013 by
       [Mother] against [Father], asking for spousal support and child
       support for the parties’ two children, A.V., age 16[,] and K.V.,
       age 13. After an office conference on October 10, 2013, an
       interim order was entered on November 22, 2013, effective
       September 4, 2013. A hearing de novo was scheduled for
       January 31, 2014 in response to Father’s appeal filed on
       December 9, 2013 and to [Mother’s] appeal filed on December
       18, 2013. It was then continued [until] March 25, 2014. On
       March 25, because testimony could not be completed, the matter
       was continued to May 2, 2104. The hearing was held on May 2,
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     2104 and an Order was issued on May 12, 2014, effective
     September 4, 2013. Pursuant to the Guidelines, Father is to pay
     $1,058.86 per month allocated as child support of $783.95 and
     APL of $274.91 per month. The unreimbursed medical expenses
     and the agreed-upon extracurricular activities were allocated at
     62% - 38%.

                                   *    *    *

     [Father and Mother] were married on October 2, 1996. They
     separated on May 30, 2013 when [Mother] moved out of the
     marital residence.     They have two children . . . .         Since
     separation,] each has custody one-half of the time. Each party
     claims one child for tax purposes. Father still lives in the marital
     residence. An APL claim is contained in the divorce complaint.
     Both parties have medical insurance for the family through
     employment.

     Father has been employed by the Pennsylvania State Police since
     1992. He earns a bi-weekly gross of $3,926.60 with a net of
     $5,875.45 per month.        Father has a flexible schedule and
     opportunity for overtime, although his overtime has been
     reduced because of his desire to have more time with his
     children. He recently was working on a case in Berks County
     which gave him a higher pay, but that job is now over. The
     children’s extracurricular activities cost $80.00 bi-weekly for
     school lunches, cell phone bills, hitting lessons, ski club, lacrosse
     and baseball activity fees for an annual total of $930.00. Father
     has been paying these sums, and has requested a downward
     deviation therefor.

     Mother works for the police department of Lebanon County. She
     receives a bi-weekly gross of $2087.31 for a monthly net of
     $3269.82. She owns her own home, bought after separation,
     having purchased it with a loan from her mother. Her mother
     also helps her financially with legal bills for the divorce. She
     would be willing to share the children’s extracurricular expenses.

     The party’s primary dispute involves the fact that Mother was
     previously employed by the East Lampeter Police Department for
     18 years and had annual earnings higher than her current
     employment. She had resigned and her last day of work there
     was November 18, 2011. Father argues that she should now be
     held to an annual earning capacity of $76,436.78, which was
     calculated by adding on a 3% yearly adjustment upward of her
     East Lampeter salary covering the years since she left the

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       position. She had applied for the Lebanon job in October of
       2011; she was hired in February of 2012 well prior to their
       separation. When he learned that she had applied to Lebanon
       County, Father expressed doubts to her as to whether she could
       get the job after what happened in East Lampeter.

       The narrative of why and how Mother left her East Lampeter
       position is not a simple one. It involved the failure of her
       marriage, her drinking heavily from 2011 into 2013,[1] a
       romantic involvement with a fellow officer, and negligent
       damages to a police cruiser which she then lied about to her
       superior. When she finally told the truth, she was temporarily
       suspended and reduced to patrol status. Subsequently, she hurt
       her back and went on light duty. During that time she went into
       rehab for her drinking. While she was in rehab, Father went to
       see her immediate supervisor. Absent a waiver or a release
       from Mother the two men discussed her drinking problem and
       the details of Wife’s working difficulties and misconduct. The
       two men decided that Father would convince her to resign, which
       she did on December 21, 2011. Had she not resigned, she
       would have been terminated and would have lost her pension.
       She hasn’t had a drink since September of 2012.

Trial Court Opinion (“T.C.O.”), 7/16/2014, at 1-3 (citations to notes of

testimony omitted; minor modifications to punctuation).

       Following the hearing, the trial court issued its May 12, 2014 order

which set Father’s child support and APL obligations. Father filed two notices

of appeal. The first, filed on June 9, 2014, was docketed at 1196 MDA 2014.

Father filed a second notice of appeal, identical to the first except for an

____________________________________________


1
      Mother testified that she stopped drinking in September 2012. Notes
of Testimony, 3/25/2014 & 5/2/2014, at 28. Later, Mother said she stopped
drinking in September 2013. Id. at 40. However, based upon Mother’s
testimony that she celebrated eighteen months of sobriety on March 15,
2014, id. at 28, we assume September 2012 is the intended date.




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amended certificate of service, on June 12, 2014, which was docketed at

997 MDA 2014.2 The trial court ordered, and Father timely filed, a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

       Father raises the following issues for our review:

       1. Whether the Trial Court abused its discretion and/or
          committed an error of law by failing to award a downward
          deviation to the Support Order as a result of Mother’s receipt
          of a lump sum of $65,000.00 from her own mother as well as
          additional financial assistance received from her mother for
          attorney fees and litigation expenses in the pending matter.

       2. Whether the Trial Court abused its discretion and/or
          committed an error of law by failing to award a downward
          deviation in the child support and/or credit Father for his
          post-separation payment of extra-curricular activities for the
          minor children and contributions to the 529 accounts (TAP
          accounts), when they are the same activities the children
          participated in for at least two years prior to the parties’
          separation, both parents are in agreement with the children’s
          participation in the activities, they are consistent with the
          standard of living during the marriage, and the parties agree
          it is in the children’s best interests to continue to participate
          in those activities.

       3. Whether the Trial Court abused its discretion and/or
          committed an error of law by utilizing Mother’s current
          income with the Lebanon County District Attorney’s Office
          instead of assigning her an earning capacity consistent with
          her prior income with the East Lampeter Township Police
          Department in the calculation of the support order when the
          reduction in her income is based on Mother’s willful
          misconduct and/or voluntary reduction in her income, and her
          failure to mitigate the loss of her income.
____________________________________________


2
       On August 7, 2014, this Court ordered the two docket numbers to be
listed consecutively and permitted Father to file one brief. Father has done
so. Because only one set of issues has been raised, we consolidate the two
docket numbers and dispose of them together.



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Father’s Brief at 9-10.

      Our standard of review for child support orders is as follows:

      When evaluating a support order, this Court may only reverse
      the trial court’s determination where the order cannot be
      sustained on any valid ground. We will not interfere with the
      broad discretion afforded the trial court absent an abuse of the
      discretion or insufficient evidence to sustain the support order.
      An abuse of discretion is not merely an error of judgment; if, in
      reaching a conclusion, the court overrides or misapplies the law,
      or the judgment exercised is shown by the record to be either
      manifestly unreasonable or the product of partiality, prejudice,
      bias or ill will, discretion has been abused. In addition, we note
      that the duty to support one’s child is absolute, and the purpose
      of child support is to promote the child’s best interests.

Kimock v. Jones, 47 A.3d 850, 854 (Pa. Super. 2012) (citations omitted).

      Father first challenges the court’s failure to lower his child support

payment based upon Mother’s receipt of money from her mother.           Father

asserts that Mother was not credible regarding this money because Mother

testified that it was a loan, but also provided a letter to her mortgage lender

indicating it was a gift.   Father claims that the trial court erred in relying

upon Mother’s characterization of the money. Father asserts that the money

that Mother received lowers her mortgage obligation and legal bills and thus,

provides her with additional disposable income which supports a deviation

from the guideline support amount. Father’s Brief at 33-40.

      Income for the purposes of child support is defined as:

      [C]ompensation 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

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      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. Notably, this definition includes neither gifts nor loans.

Because the money Mother received, whether a gift or a loan, is not income,

Father argues that it should have supported a deviation.

      There is a rebuttable presumption that the guideline calculation of

child support is correct. 23 Pa.C.S.A. § 4322(b). However, the trier of fact

may deviate from the amount dictated by the child support guidelines. This

decision is guided by the following rule:

      (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.

      (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;


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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. 1910.16-5.

         Mother testified that she received $65,000 from her mother for the

down payment on her house.             Notes of Testimony (“N.T.”), 3/25/2014 &

5/2/2014, at 35.3 Despite signing a “gift letter” for the mortgage company,

Mother stated she intended to pay the money back.                 Id.   Mother also

acknowledged that her mother had given her money for her legal fees. Id.

at 38.

         The trial court found that the amounts Mother received were used as a

down payment for her new residence and to defray the legal expenses

stemming from her divorce. T.C.O. at 6-7. Because the court found that

the money had been used, the trial court determined that it did not remain

for Mother to use for day-to-day expenses and did not justify a deviation.

Id. at 7.

____________________________________________


3
    There are two volumes of testimony, but they are continuously
numbered.



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      The record supports this determination.       Further, Father offers no

explanation why the statutory factors support such a deviation, other than

his statement that Mother had more disposable income because her

mortgage payments and legal bills are lower because of the money Mother

received.   See Pa.R.C.P. 1910.16-5(b).      The trial court determined that

Father did not rebut adequately the presumption that the guideline amount

is correct. The court did not abuse its discretion in reaching that conclusion.

      To the extent that Father asks us to determine the trial court erred in

finding Mother to be credible, we note the following:

      [W]ith regard to issues of credibility and weight of the evidence,
      this Court must defer to the trial judge who presided over the
      proceedings and thus viewed the witnesses first hand. When the
      trial court sits as fact finder, the weight to be assigned the
      testimony of the witnesses is within its exclusive province, as are
      credibility determinations, [and] the court is free to choose to
      believe all, part, or none of the evidence presented.

Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009) (citations and

quotation marks omitted).    The record supports the trial court’s credibility

and weight determinations with regard to the deviation and we find no error.

      Father next argues that the trial court erred in not awarding a

deviation based upon Father’s payment of extracurricular activities expenses

and Father’s contributions to the children’s college savings plans.      Father

contends that Mother consented to the various activities in which the

children are involved, and that, because Father solely has paid for the

related expenses, he should have received a deviation in his support



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obligation.   Father also argues that the trial court underestimated the

amount of these expenses.       Father asserts that the court should have

provided a deviation instead of ordering the parties to pay a proportionate

share because Mother cannot be trusted to reimburse Father for expenses.

Finally, Father contends that the court only addressed prospective, and not

retrospective, extracurricular expenses. Father’s Brief at 40-46.

      The rule governing extra expenses provides as follows:

      (d) Private School Tuition. Summer Camp. Other Needs.
      The support schedule does not take into consideration
      expenditures for private school tuition or other needs of a child
      which are not specifically addressed by the guidelines. If the
      court determines that one or more such needs are reasonable,
      the expense thereof shall be allocated between the parties in
      proportion to their net incomes. The obligor’s share may be
      added to his or her basic support obligation.

Pa.R.C.P. 1910.16-6(d). We have held that, when reasonable and consistent

with a family’s standard of living, extracurricular activities can constitute

“other needs” to be allocated between the parties according to their

respective incomes. See Silver v. Pinskey, 981 A.2d 284, 302 (Pa. Super.

2009).

      Mother testified that she was aware of the children’s activities, but that

Father had never asked her to contribute to the costs. N.T. at 31. Mother

stated that she was unaware of some of the children’s activities because

Father registered for them.     Id. at 52.    Mother agreed that reasonable

expenses should be divided between the parties. Id. at 53-54.




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      Father testified that he and Mother have paid for the children’s school

lunches.     Id. at 147.   He also paid for the children’s cell phones, batting

lessons, ski club, and lacrosse. Id. at 150, 153, 155. Father testified that

Mother was aware of these expenses and never objected to the children’s

involvement in the activities. Id. at 150-56. Father admitted that he had

not requested any reimbursement from Mother. Id. at 158.

      Here, the trial court ordered the parties to contribute to these

expenses in proportion with their income when the parties agreed upon the

child’s participation in the activity. The trial court believed that the parties’

agreement would ensure that the expenses were reasonable. T.C.O. at 7.

Because reimbursement was contemplated, the court did not award a

deviation.     Rule 1910.16-6 contemplates adding fixed expenses to the

obligor’s basic support, but does not provide for lowering support upon the

same basis. Although the trial court could consider a deviation, it was not

an abuse of discretion for the court to conclude that reimbursement was the

better option.

      With respect to Father’s contributions to a college savings plan, the

trial court did not award a deviation. The trial court stated that, because it

could not order Mother to provide support for post-secondary education, it

would not order her to contribute to the college savings plan. T.C.O. at 7-8.

There is no legal duty for a parent to provide a post-secondary education for

a child, although a parent may assume such a duty voluntarily or

contractually. See W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa. Super. 2014).

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Father essentially asks us to lower the amount of support available to the

children now because he is saving for their college education.       While we

applaud Father’s voluntary contributions to his children’s future education,

that decision should not reduce the children’s support now.

      As to Father’s concern about past expenses, our courts have said that

the effective date is the date the support complaint is filed and there is a

strong presumption of retroactivity to the filing date. See Christianson v.

Ely, 838 A.2d 630, 636 (Pa. 2003); see also Pa.R.C.P. 1910.17. We have

also held that a court cannot impose a support obligation effective date prior

to the filing of the complaint.   Kelleher v. Bush, 832 A.2d 483, 485 (Pa.

Super. 2003).

      Here, Father seeks post-separation expenses. However, the effective

date must be when Mother filed her support complaint.         The trial court’s

order states that it is effective as of September 4, 2013. Order, 5/12/2014,

at 3. The effective date on the order precedes the court’s allocation of the

extracurricular expenses. Therefore, by the court’s order, any expenses for

agreed-upon activities from September 4, 2013 onward were to be allocated

between the parties. We find no error in the trial court’s order with regard

to extracurricular expenses.

      Finally, Father argues that the trial court erred in using Mother’s

current earnings as her income for support, rather than assigning an earning

capacity based upon her East Lampeter income.       Father disputes the trial

court’s fact-finding regarding his discussion with Mother’s employer and the

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events that led to her resignation. Father contends that Mother willfully left

her employment or would have been fired and that she should be held to an

earning capacity equal to her salary at that employment rather than the

reduced income she has from her Lebanon employment. Father argues that

Mother has “manipulate[ed] the support system by obtaining a lower paying

job.” Father’s Brief at 47-64.

      Our rules provide that:

      When either party voluntarily assumes a lower paying job, quits
      a job, leaves employment, changes occupations or changes
      employment status to pursue an education, or is fired for cause,
      there generally will be no effect on the support obligation.

Pa.R.C.P. No. 1910.16-2(d)(1). “A party may not voluntarily reduce his or

her income in an attempt to circumvent his support obligation.” Grigoruk

v. Grigoruk, 912 A.2d 311, 313 (Pa. Super. 2006) (citing Woskob v.

Woskob, 843 A.2d 1247, 1253–54 (Pa. Super. 2004)). “However, when a

parent has not voluntarily reduced his income to circumvent his support

obligation the court can consider reducing the parent’s child support

obligation.”    Smedley v. Lowman, 2 A.3d 1226, 1228 (Pa. Super. 2010)

(citation and quotation marks omitted).

      Mother testified that she discussed her resignation with Father, and

that Father was concerned about her pension.      N.T. at 22. Mother stated

that she resigned to keep her pension and to keep a termination off her

record.   Id.    Mother’s supervisor, John Bowman, confirmed that Mother

would have been dismissed if she had not resigned. Id. at 82, 86. Mother


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also testified that Father knew she had applied for the Lebanon job, and that

Father did not believe she would get the job because of her prior

misconduct.    Id. at 23-24.    Between starting the Lebanon job and the

parties’ separation, Father never asked Mother to look for a higher-paying

job. Id. at 30-31.

      Father testified that he did not want Mother to accept any job that paid

less than the East Lampeter job. Id. at 162. However, he confirmed that

he was surprised that she was offered the Lebanon job based upon her

misconduct at the prior job. Id. at 163. Father stated, “She was lucky to

get that [job].” Id. at 182.

      The record supports the trial court’s fact-finding.    Mother’s employer

testified that his notes from his meeting with Father indicated that Father

was going to attempt to convince Mother to resign.          Id. at 100.   Father

confirmed that, if Mother was going to be terminated, Father “was going to

tell her to resign.”   Id. at 180.   Mr. Bowman also admitted that Mother

never authorized him to speak with Father regarding her employment. Id.

at 96.   Instead, Mr. Bowman testified that he thought he could discuss

Mother’s employment status with Father because Mother and Father were

married. Id. at 96-97. Mr. Bowman also testified that Father told him that

Mother’s injury, for which she received light duty, was not work-related, and

that Father said “very damaging things about [Mother],” “damning stuff for

him to be coming in and saying.” Id. at 97, 99.




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        Here, the trial court found that Mother had to resign or face

termination due to her conduct.     The trial court also opined that, given

Mother’s conduct in her East Lampeter job, Mother would have been hard

pressed to find a similar job.   Further, Mother resigned and accepted the

lower-paying Lebanon job prior to the parties’ separation when no support

obligation was contemplated.      Therefore, the trial court concluded that

Mother did not voluntarily reduce her income to support obligation. T.C.O.

at 5.

        We agree with the trial court.   It is difficult to believe that Mother

accepted a job in February 2012 to lower her income for the purposes of

child support when the parties did not separate until May 2013 and a

support complaint was not filed until September 2013. Further, while Father

may not have been happy that Mother took a lower-paying job, he

recognized that Mother was lucky to get the Lebanon job. Given that Mother

did not reduce her income for the purposes of avoiding a support obligation

and that she took the job that was available to her, the trial court did not

abuse its discretion in using Mother’s current salary as her income for

support.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2014




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