J-S38003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.S.S.                                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                    v.

R.S.

                           Appellant                 No. 1285 MDA 2014


                Appeal from the Order Entered on July 2, 2014
            In the Court of Common Pleas of Cumberland County
                 Domestic Relations at No.: 974 Support 2012


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

MEMORANDUM BY WECHT, J.:                               FILED JULY 17, 2015

       R.S. (“Father”) appeals the July 2, 2014 order that set his child

support obligation. Because the record did not provide sufficient support for

the trial court’s award, we are constrained to vacate the order and remand

for further proceedings.

       A prior panel of this Court set forth the factual and procedural history

of this case as follows:

       Father and [M.S.S. (“Mother”)] were married in September 1989
       and are the parents of four minor children. The parties lived
       together until Father was arrested on February 25, [2009]. He
       has been incarcerated since that time.

       Father is entitled to receive monthly payments of $799.20 from
       a TIAA-CREF annuity that comes from Father’s inheritance from
       his father.      From the time of his incarceration until
       approximately May 2012, Father directed TIAA-CREF to deposit
       these payments into the joint bank account that he shares with
       [Mother]. Mother used these funds to support herself and the
       parties’ children. However, when Mother told Father of her
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       intention to seek a divorce, Father instructed TIAA-CREF to stop
       the monthly deposits in the parties’ joint account. Father had
       these funds deposited into his prison account until October or
       November 2012, at which time Father elected to stop receiving
       the payments.

       Following Father’s diversion of the annuity funds from their joint
       account, Mother filed a complaint seeking both spousal and child
       support. Initially, [Mother’s] petition was denied because Father
       is incarcerated. Mother petitioned for a hearing de novo, at
       which both parties appeared pro se and testified.         [Father
       appeared via telephone conference.] At the hearing, Father
       testified as to the amount of the monthly TIAA-CREF payments
       and his decision to “defer” them until a later time. Father also
       testified that he earns $7.68 per month in prison as a library
       clerk. Following the hearing, the hearing officer entered an
       interim order finding Father’s income to be $799.20 (the amount
       of the TIAA-CREF payments), and setting Father’s child support
       obligation to be $50.00 per month, with an additional payment
       of $5.00 toward arrears.[1] In the report and recommendation
       the master filed contemporaneously with the interim order, he
       recommended dismissing [Mother’s] request for spousal support.

       Mother retained counsel and filed exceptions, arguing, inter alia,
       that the master erred by determining Father’s support obligation
       strictly on the support guidelines without taking into
       consideration the extraordinary circumstance of Father’s
       incarceration, which eliminates his need for the TIAA-CREF
       income, and the fact that Mother has sole custody of the
       children, as Father is incarcerated. According to [Mother], these
       circumstances militate in favor of an upward deviation from the
       guideline support figure. . . .       The trial court dismissed
       [Mother’s] exceptions and made the hearing officer’s interim
       order final.


____________________________________________


1
      The hearing officer based this amount upon the child support
guidelines applicable at the time of the hearing, which provided for a basic
child support amount of $50 for one child when the obligor’s income was
between $0 and $900. Pa.R.C.P. 1910.16-3 (2013). The hearing officer did
not explain why he did not set the obligation at $65, which was the guideline
amount for four children.



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[M.S.S. v. R.S.], 1282 MDA 2013, slip op. at 1-3 (Pa. Super. March 12,

2014) (citations to record and footnote omitted).

     This Court determined that the trial court failed to address and

consider adequately Mother’s request for an upward deviation, vacated the

order, and remanded for consideration of the deviation. Id. at 5-6.

     Following the remand, on June 11, 2014, the trial court heard

arguments on Mother’s exception. Mother argued that the factors listed in

Pa.R.C.P. 1910.16-5(b) militated in favor of an upward deviation. Notes of

Testimony (“N.T.”), 6/11/2014, at 7-8.     Essentially, Mother asserted that

Father’s needs are being met in prison and that because he has no

expenses, his income should be used for the children. Id. at 8-9. Father

responded that, because his income is below the self-support reserve, the

guidelines provided for no support obligation. Moreover, Father asserted that

Mother has all the assets from the marriage at her disposal. Id. at 11-12.

     On July 2, 2014, the trial court accepted Mother’s argument and issued

an order that set Father’s child support obligation at $200.00 per month and

$5.00 per month on arrears. Contemporaneously, the trial court set forth its

reasoning for the deviation in a memorandum opinion. On July 30, 2014,

Father filed a pro se notice of appeal.   On August 5, 2014, the trial court

ordered Father to file a concise statement of errors complained of on appeal




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pursuant to Pa.R.A.P. 1925(b).           Father filed a timely concise statement.2

Instead of filing a Pa.R.A.P. 1925(a) opinion, the trial court relied upon its

July 2, 2014 memorandum opinion.

       Father raises the following issues for our review:

       A. Did the trial court err[] and/or abuse[] its discretion in
          determining that an annuity payment from inheritance was
          “income” and not a gift.

       B. Did the trial court err[] and/or abuse[] its discretion when it
          calculated child support obligation of [Father] based upon
          “income” from the gift of an inheritance.

       C. Whether the trial court erred and/or abused its discretion
          when it failed to consider the mandate of the self-sufficient
          reserve, and imposed a child support obligation when [Father]
          had either “no income” or “income” before the SSR.

       D. Did the trial court err[] and/or abused[] its discretion by
          failing to follow the Pa.R.C.P. to inquire into the actual living
          expenses before ordering an upward deviation in the child
          support guidelines in a low income case.

       E. Whether the trial court erred and/or abused its discretion in
          deviating upward, in a low or no income case, from $50.00 to
          $200.00 per month the child support obligation without any
          unusual guidelines determining that an inheritance [sic].

       F. Did the trial court err and/or abuse its discretion by deviating
          from the support guidelines without considering the relative
          assets and liabilities of the parties as required by the rules.


____________________________________________


2
      Having been docketed on August 28, 2014, Father’s concise statement
appears facially untimely. However, Father’s concise statement is dated
August 12, 2014 and, giving Father the benefit of the prisoner mailbox rule,
we deem it timely. See Copestakes v. Reichard-Copestakes, 925 A.2d
874, 875 n.2 (Pa. Super. 2007).




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      G. Did the trial court err and/or abuse its discretion when the
         child support obligation was deviated upward based on
         income and on any finding of “special needs” as required by
         statute.

Father’s Brief at 5-6.

      Our standard of review of a child support order is well-settled:

      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).

      “[T]he support guidelines set forth the amount of support which a

spouse or parent should pay on the basis of both parties’ net monthly

incomes . . .    and the number of persons being supported.”         Pa.R.C.P.

1910.16-1(a). There is a rebuttable presumption that the guideline amount

of child support is the correct amount. Pa.R.C.P. 1910.16-1(d). Further, in

low income cases, the guidelines provide for a self-support reserve so that a

party has sufficient income for basic necessities.       “When the obligor’s

monthly net income is $867 or less, the court may award support only after




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consideration of the parties’ actual financial resources and living expenses.”

Pa.R.C.P. 1910.16-2(e)(1)(C).3

       However, “a court generally has reasonable discretion to deviate from

the guidelines if the record supports the deviation.” Silver v. Pinskey, 981

A.2d 284, 296 (Pa. Super. 2009). Rule 1910.16-5 addresses deviation from

the guidelines as follows:

       (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;

       (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;



____________________________________________


3
      As of August 9, 2013, the self-support reserve was increased to $931.
However, we cite the version of the rule that was in effect at the time of the
hearing. Further, Father’s annuity payment was less than either amount.



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     (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.

     With that background, we turn to Father’s issues on appeal.       In his

first two issues, Father argues that the monthly amount that he receives is

an inheritance or a gift, which is not considered income for purposes of

support.   Father’s Brief at 10-13.   However, although the hearing officer

calculated a guideline amount of support based upon an income of $0 to

$900, the trial court did not treat the payment as income and did not

calculate a guideline amount of support based on the annuity payment as

income to Father.      Instead, the trial court used the payment in its

consideration of a deviation pursuant to Rule 1910.16-5, under which, the

trial court can consider other assets of the parties and other circumstances.

Gifts may be considered by the trial court when determining whether to

deviate from the guidelines. Suzanne D. v. Stephen W., 65 A.3d 965, 970

(Pa. Super. 2013).      Additionally, our Supreme Court has held that

inheritances may be treated the same way. Humphreys v. DeRoss, 790

A.2d 281, 288 (Pa. 2002).    Therefore, regardless of how Father’s annuity

payments are classified, the trial court could still consider the payments in

deciding whether a deviation was appropriate.




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         Father’s next two arguments involve the self-support reserve. Father

argues that, because his income is less than the self-support reserve, the

trial court should not have awarded child support to Mother.               Father

contends that he was not given the opportunity to present evidence

regarding his needs and expenses. Father’s Brief at 14-17.

         To the extent that Father argues that the trial court could not consider

that his basic needs are provided by the government, we disagree. When a

party’s living expenses of food and lodging are subsidized by another, it may

be a consideration in determining a child support obligation.         Mooney v.

Doutt, 766 A.2d 1271, 1274 (Pa. Super. 2001).                 Therefore, Father’s

incarceration and its effect on his expenses could be considered by the trial

court.

         Unfortunately, the record did not suffice to allow the trial court to

engage in that consideration.           The record before the hearing officer 4 is

devoid of evidence regarding Father’s “actual financial resources and living

expenses.”       See Pa.R.C.P. 1910.16-2(e)(1)(C).          There was testimony

regarding both parties’ income and Father’s annuity payment. N.T. at 6, 13,

16. Additionally, Father questioned Mother about her monthly rent. N.T. at

22.      Although the trial court is likely correct that Father’s actual living
____________________________________________


4
     The June 11, 2014 proceeding before the trial court was solely for the
purpose of arguing Mother’s exceptions and, therefore, is not evidence.
Even if it were evidence, there is no discussion of the parties’ actual
expenses.



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expenses are minimal, there is no evidence other than the fact of Father’s

incarceration to support that conclusion. Additionally, Father indicated that

his annuity payment is used for expenses. See N.T. at 15 (Father testifying

that payment was “given our now for legal fees and things like that that I

have incurred during my appeal process”), 18 (Father testifying that the

annuity payment “is committed money.       This is not a question of what is

available to me.   This money is committed to other places.”).      Therefore,

there was insufficient evidence of record to support the trial court’s decision

to grant Mother’s exception and order a deviation in Father’s support

obligation. We are constrained to vacate the July 2, 2014 order and remand

so that the trial court can develop a record to allow it to consider the actual

resources and expenses of the parties as well as Mother’s request for a

deviation.

      Order vacated.      Remand for further proceedings.          Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2015




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