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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

D.M.P.,                                  :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                        Appellant        :
                                         :
                   v.                    :          No. 668 EDA 2018
                                         :
B.R.B.                                   :


                   Appeal from the Order, January 31, 2018,
                in the Court of Common Pleas of Bucks County
               Domestic Relations Division at No. 2015DR00538,
                             pacses No. 014115221


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED NOVEMBER 20, 2018

     D.M.P. (“Mother”) appeals from the January 31, 2018 order entered in

the Court of Common Pleas of Bucks County that determined the child

support obligations of B.R.B. (“Father”) for the support of the parties’ minor

child, B.B., born out of wedlock in October 2014 (“Child”). We affirm.

     The trial court set forth the following:

           On March 27, 2015, Mother filed a Complaint for
           Support.    A hearing to address this matter was
           scheduled and continued numerous times.         The
           support hearing was ultimately held on December 4,
           2017 and December 5, 2017. We rendered our
           decision on December 13, 2017 and entered an
           Order of the Court on that same day.             On
           December 29, 2017, we amended that Order. Then,
           in an abundance of caution, we subsequently created
           a Final Order, dated January 31, 2018 that clarified
           what was intended in the two prior Orders. The Final
           Order included the following, verbatim:
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               The Interim Order dated 05/06/15 is
               rescinded.          Effective     3/27/15,
               Defendant/Father is to pay the sum of
               $7,020.00 per month for the support of
               one child. Arrears are to be liquidated at
               $1,404.00 per month. Effective 11/2/15,
               [Father] is to pay the sum of $7,408.00
               per month for the support of one child.
               Arrears are to be liquidated at $1,482
               per month. Effective 04/01/16, [Father]
               is to pay the sum of $6,709.00 per
               month for the support of one child.
               Arrears are to be liquidated at $1,342.00
               per month. Health care coverage to be
               provided by [Father].        Unreimbursed
               medical expenses that exceed $250.00
               annually per child are to be paid 100%
               by [Father].     Order considers health
               insurance coverage by the parties for the
               child and also considers the parties[’]
               overnights.    Court further orders that
               [Father] is to cover 100% of all special
               needs expenses for the child. Court finds
               [Father’s] income to be $75,000.00 net
               per month and [Mother’s] income to be
               $4,134.00 gross per month from 3/7/15
               through 3/31/16 and then “zero” from
               4/1/16 to present.            [Father]  is
               responsible for a payment of a one-time
               Judicial Computer System Fee of $35.50.

          On January 11, 2018, Mother appealed the
          December 13, 2017 and December 29, 2017 Orders
          of the Court. Those appeals, which were docketed at
          279 and 280 EDA 2018 have since been
          discontinued.

          The original Order of December 13, 2017 and the
          Amended Order of December 29, 2017 were
          subsequently clarified by a Final Order dated
          January 31, 2018 and produced above verbatim.
          Mother filed an appeal of that Order on March 19,
          2018 and that appeal is docketed at 668 EDA 2018.


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Trial court opinion, 5/8/18 at 1-2.

      The record reflects that the trial court ordered Mother to file a concise

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

Mother timely complied. The trial court then filed its Rule 1925(a) opinion.

      Mother raises the following issues for our review:

            A.    Whether the Trial Court abused its discretion
                  when it failed to include all retained earnings of
                  [Father’s two business entities, X Corporation
                  and Y Management] in Father’s income when
                  clear findings were made on the record that
                  Father has a 100% controlling interest in
                  [Father’s two business entities], that the
                  retained earnings were actually available to
                  Father, that the retained earnings were
                  excessive, and that Father failed to meet his
                  burden of proof that such retention was
                  necessary to maintain or preserve his
                  business?

            B.    Whether the Trial Court abused its discretion
                  by failing to quantify what amount of the
                  retained earnings in [Father’s two business
                  entities] were included in Father’s income for
                  purposes of calculating Father’s child support
                  obligation?

            C.    Whether the Trial Court abused its discretion in
                  failing to consider or deviate the support Order
                  upward when Father only has custody of the
                  minor child 21 percent of the time, when the
                  Support     Guidelines   Pa.R.C.P.    1910.16.1,
                  presumes that children spend 30 percent of the
                  time with the obligor?

            D.    Whether the Trial Court abused its discretion
                  by failing to specify, in writing or on the
                  record, the guideline amount of support, and
                  the reasons for, and finding of fact justifying,


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                  the amount of the deviation pursuant to
                  Pa.R.C.P. 1910.16-5(a)?

Mother’s brief at 6.

      When reviewing a child support order, we employ the following

standard of review:

            [T]his 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.

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

finding of an abuse of discretion must rest upon a showing by clear and

convincing evidence, and the trial court will be upheld on any valid ground.

Baehr v. Baehr, 889 A.2d 1240, 1243 (Pa.Super. 2005). Additionally, the

fact-finder, having heard the witnesses, is entitled to weigh the evidence and

assess its credibility. Id. at 1245. Moreover, support orders “must be fair,

non-confiscatory and attendant to the circumstances of the parties.”

Fennell v. Fennell, 753 A.2d 866, 868 (Pa.Super. 2000) (citation omitted).

      Mother first complains that the trial court erred when it failed to

include all retained earnings of Father’s two business entities to determine

Father’s monthly net income after it found that Father controls 100 percent



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of those two business entities; that the retained earnings were actually

available to Father; that the retained earnings were excessive; and that

Father failed to demonstrate that retention of the earnings was necessary to

maintain or preserve his businesses.

     The Domestic Relations Code defines “income” 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; 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.

     With respect to business income, this court has held that “[w]hen a

payor spouse owns his own business, the calculation of income for child

support purposes must reflect the actual available financial resources of the

payor spouse.” Fitzgerald v. Kempf, 805 A.2d 529, 532 (Pa.Super. 2002)

(internal quotation marks and citation omitted).      Therefore, all benefits

flowing from business ownership must be considered in determining income


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available for a support obligation.     See Fennell, 753 A.2d at 868.      A

business owner “cannot avoid a support obligation by sheltering income that

should be available for support by manipulating . . . distribution amounts.”

Id. “By the same token, however, [this court] cannot attribute as income

funds not actually received by the party.” Id.

      Here, the trial court held a two-day hearing to determine, among other

things, Father’s monthly available net income.      Mother argued that the

average of Father’s monthly available net income for child support for the

years 2015, 2016, and 2017 was $126,833. Father argued that his monthly

available net income for child support for 2015 was $32,560 and $25,862 for

2016 and 2017. (See trial court opinion, 5/8/18 at 6.) At the hearing, the

trial court heard the testimony of Mother’s expert, Father’s expert, and

Mother.   Additionally, the trial court received into evidence 44 of Mother’s

exhibits that largely consisted of Father’s personal and corporate tax

returns, bank statements, and cancelled checks, and totaled nearly

2,000 pages. “After reviewing all the relevant evidence in this case,” which

took “several days,” the trial court found that

            Father had a cash income of at least one thousand
            dollars a week, as no testimony or evidence was
            presented to contradict the evidence presented by
            Mother about Father’s cash income being somewhere
            between $1,300 and $13,000 a month.

            Further, we found that because no evidence was
            presented regarding the cost of alleged planned
            improvements that [X] Corporation was going to
            have to move their business to another location,


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            Father was in large part retaining earnings in his
            wholly owned corporations not completely for
            business purposes but instead in an attempt to
            reduce his income for the purpose of also reducing
            his support obligations.

            Similarly, we found that the amount of retained
            earnings was excessive. In addition, even though
            we believed that due to the expansion of the
            business, some increase in retained earnings was
            justified, the amount of earnings that have been
            retained in the corporation since the child was born
            and the support issue was raised was excessive and
            was being done at least in part to defer income to a
            later point when Father would no longer be obligated
            to pay child support. We also recognized that some
            portion of the retained earnings were in fact income
            that was recognized as income for tax purposes since
            it was accounts receivable but in fact was not actual
            money received by the company and therefore was
            not actually available to be paid to Father, even if
            Father wanted it paid to him.

            Additionally, although we determined that a number
            of items were double counted by Mother’s expert
            (Sean O’Reilly) with regard to Father’s income, we
            ultimately found that Father had a substantial
            income capability and that he was choosing not to
            exercise his ability to earn all of the income that he
            has the potential to earn as he has one hundred
            percent controlling interest in both of his
            corporations. We credited the testimony of Father’s
            expert (Gregory Cowhey) over that of Mother’s
            expert in this regard to a large extent. Considering
            everything we found that Father has a net income for
            child support of $75,000 a month, and the Support
            Order was entered based on that determination.

Trial court opinion, 5/8/18 at 4-5 (citation to notes of testimony omitted).

      Mother complains that because the trial court found, as a matter of

fact, that Father controlled 100 percent of his two business entities, that



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retained earnings of those businesses were excessive, that the retained

earnings were available, and that Father failed to meet his burden of proving

that retention of those earnings was necessary to retain and preserve his

businesses, that the trial court was required, as a matter of law, to include

all of the retained business earnings in Father’s monthly available net

income. Mother cites no case law to support this contention. Additionally,

Mother ignores the trial court’s factual findings that justified retention of

some business earnings; specifically, the trial court concluded that Father

needed to retain capital to expand his businesses; Father’s retention of a

portion of the earnings was income for tax purposes, but not received as

cash; and Mother’s expert double counted a number of items when he

calculated Father’s net available income.      (Trial court opinion, 5/8/18 at

4-5.) We find no abuse of discretion.

      Mother next complains that the trial court erred by not quantifying the

amount of retained earnings it included in determining Father’s net available

income.   Although we note that Mother cites no case law to support her

seeming position that the trial court was required to assign a precise number

to the retained earnings it included, the trial court explained that:

            [Mother’s] complaint essentially is that we did not
            calculate the support amount with mathematical
            precision and we did not include all of the retained
            earnings as income available for support. In this
            case we did not feel that a precise mathematical
            calculation was possible. Contrary to what Mother
            advocated, Father presented evidence that justified
            some increase in retained earnings for his businesses


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            based on its increasing size. In particular we found
            that the increasing size and the nature of his
            business required additional capital for additional
            equipment and to be able to get the necessary
            performance bonds that were contractually required
            by the nature of the business. Unfortunately, the
            nature of equipment financing and the bonding
            business is neither static nor governed by precise
            formulas. As such the evidence convinced us that an
            increased level of retained earnings was required by
            his growing business.      We therefore refused to
            blindly determine that all retained earnings
            constituted income available for support.

            Mother advocated that if we did so Father would
            have net income available for support of
            $126,833.00 on average for the years in
            questions [sic].   Father advocated that his net
            income available for support was only $32,560.00 for
            2015 and $25,862.00 for 2016 and 2017.           As
            indicated, Mother’s numbers were inaccurate both
            because of the retained earnings issue and because
            she double counted a number of items.

            The fact that we could not precisely calculate exactly
            what [Father’s] net monthly income for support did
            not mean that we could not enter a support order.

Trial court opinion, 5/8/18 at 5-6.

      We find no abuse of discretion.

      Mother next complains that the trial court erred by failing to consider

or deviate the child support order upward when Father has custody of Child

21 percent of the time and the support guidelines presume that children

spend 30 percent of the time with the obligor. In support, Mother cites to

the following portion of a paragraph in the 2010 explanatory comment

contained in Pa.R.Civ.P. 1910.16-4:



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           The basic support schedule incorporates an
           assumption that the children spend 30 percent of the
           time with the obligor and that the obligor makes
           direct expenditures on their behalf during that time.
           Variable   expenditures,    such    as    food    and
           entertainment, that fluctuate based upon parenting
           time, were adjusted in the schedule to build in the
           assumption of 30 percent parenting time. . . [.]

           The calculation in Rule 1910.16-4(c) reduces an
           obligor’s support obligation further if the obligor
           spends significantly more time with the children. The
           obligor will receive an additional 10 percent
           reduction in the amount of support owed at
           40 percent parenting time, increasing incrementally
           to a 20 percent reduction at 50 percent parenting
           time. . . [.]

Mother’s brief at 28, citing Pa.R.Civ.P. 1910.16-4, 2010 explanatory

comment (ellipses in Mother’s brief).

      Mother also cites to the following portion of the explanatory comment

contained in Pa.R.Civ.P. 1910.16-1:

           upward deviation should be considered in cases in
           which the obligor has little or no contact with the
           children. However, upward deviation may not be
           appropriate where an obligor has infrequent
           overnight contact with the child, but provides meals
           and entertainment during daytime contact.

Mother’s brief at 29 citing Pa.R.Civ.P. 1910.16.4 (emphasis in Mother’s

brief).

      As noted in the comment to Pa.R.Civ.P. 1910.16-4, “[u]pward

deviation should be considered in cases in which the obligor has little or

no contact” with the child.     Pa.R.Civ.P. 1910.16-45, 2010 explanatory

comment (emphasis added).


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      Here, at the child support hearing, the trial court stated that “it is

appropriate in this case to deviate from the Child Support Guidelines on a

couple of issues” and further acknowledged that it “collectively looked at the

factors for deviation and made . . . what deviation was necessary and

appropriate based on all of the circumstances.”          (Notes of testimony,

12/5/17 at 7-8.) Therefore, the record supports the conclusion that the trial

court considered all deviation factors, including the amount of time Child

spends with Father. Consequently, the record belies Mother’s claim and it

necessarily fails.

      Mother finally complains that the trial court “erred by failing to specify,

in writing or on the record, the guideline amount of support, and the reasons

for, and finding of fact justifying, the amount of the deviation pursuant to

Pa.R.C.P. 1910.16-5(a).”     (Mother’s brief at 30.)    In so arguing, Mother

ignores that part of Rule 1910.16-5 that requires the guideline amount and

reasons for deviation to be specified in writing or on the record only “if the

amount of support deviates from the amount of support determined by the

guidelines.”    Pa.R.Civ.P. 1910.1605(a).      Here, the amount of support

awarded did not deviate from the amount of support determined by the

guidelines.    In fact, Mother makes no claim that it did.            Therefore,

Rule 1910.16-5(a) did not require the trial court to place its reasons for

deviation in writing or on the record. Consequently, Mother’s claim fails.




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      Nevertheless, we note that the trial court did set forth its deviations on

the record at the child support hearing, as well as in its Rule 1925(a)

opinion, which assigned Mother an income of zero and required Father to

provide Child’s health insurance coverage, pay 100 percent of any excess

medical costs, and pay 100 percent of Child’s special needs expenses.

(Notes of testimony, 12/5/17 at 7-9; trial court opinion, 5/8/18 at 5.)

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/20/18




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