J-A26034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.E.E.                                              IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                     v.

M.P.E.

                          Appellant                      No. 2051 MDA 2013


                Appeal from the Order Entered October 11, 2013
                 In the Court of Common Pleas of York County
                 Domestic Relations at No(s): 00386-SA-2013

-------------------------------------------------------------------------------------

J.E.E.                                              IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                     v.

M.P.E.

                          Appellant                       No. 137 MDA 2014


               Appeal from the Order Entered December 20, 2013
                 In the Court of Common Pleas of York County
                 Domestic Relations at No(s): 00386-SA-2013

BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED JANUARY 28, 2015

         In these consolidated appeals, M.P.E. (“Husband”) challenges the

amount of child support that the trial court ordered him to pay J.E.E.

(“Wife”). The most intricate issue is whether income that Husband earned in

2011, his highest earnings year, is available for support calculations.
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Husband argues that his business was unusually profitable in 2011, and that

he cannot achieve this level of earnings consistently. He also insists that his

2011 earnings were offset by construction costs for a new building to house

his business.     The trial court rejected Husband’s claims and included his

2011 earnings within its support calculations.   Based on our review of the

record and relevant decisions, we conclude that the trial court appropriately

exercised its discretion. For this reason and other reasons provided below,

we affirm.

       Husband and Wife married in 1992 and have two children aged 12 and

8.   In 2011, Husband and Wife separated, and in 2012, Wife filed for

divorce. In early 2013, Wife filed a complaint for support and a petition for

alimony pendente lite against Husband. On September 19, 2013, the trial

court held a special hearing on both of Wife’s actions 1. In a memorandum
____________________________________________


1
  The certified record does not include the transcript from the one-day
hearing on September 19, 2013. As the appellant, Husband has the duty to
ensure that the record includes all transcripts necessary for appellate review.
Pa.R.A.P. 1911. If the appellant fails to carry out this duty, this Court “may
take such action as it deems appropriate, which may include dismissal of the
appeal.” Pa.R.A.P. 1911(d).

We conclude that dismissal of this appeal is not appropriate. Husband
included the transcript in his reproduced record, and the transcript appears
complete. Wife does not object to the transcript’s absence from the certified
record or complain that the transcript in the reproduced record is
incomplete. Therefore, we will augment the certified record on our own
initiative to include the transcript of the September 19, 2013 hearing.
Pa.R.A.P. 1926(b)(1) (appellate court may, on its own initiative, correct an
omission from the record at any time).




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and order docketed on October 11, 2013, the trial court directed the hearing

officer to calculate a new support obligation based on analysis of the parties’

2010, 2011 and 2012 individual tax and Husband’s S Corporation tax

returns.    On November 12, 2013, Husband filed a notice of appeal of the

October 11, 2013 order.          This Court docketed Husband’s appeal at 2051

MDA 20132.

        In an order docketed on December 6, 2013, the trial court directed

Husband to make monthly payments of $2,073.90 in child support,

$1,179.90 in alimony pendente lite3 and $296.20 in arrears.

        In another order docketed on December 20, 2013, the trial court set

Husband’s arrears at “$17,710.84 as of today.”          On January 21, 2014,

Husband filed a notice of appeal of the December 20, 2013 order.           This

Court docketed Husband’s second appeal at 137 MDA 2014.            On February

19, 2014, this Court consolidated Husband’s two appeals sua sponte4.

        Our standard of review over support orders is for abuse of discretion:

              [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
____________________________________________


2
 On November 18, 2013, the trial court directed Husband to file a Pa.R.A.P.
1925(b) statement of matters complained of on appeal. On December 9,
2013, Husband filed a timely Pa.R.A.P. 1925(b) statement. On January 17,
2014, the trial court issued a Pa.R.A.P. 1925(a) opinion.
3
    None of the issues on appeal involve the amount of alimony pendente lite.
4
    The trial court did not issue a second Pa.R.A.P. 1925(a) opinion.



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              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). “[T]he assessment of

the credibility of witnesses is within the sole province of the trial court.”

Calabrese v. Calabrese, 682 A.2d 393, 395 (Pa.Super.1996), rejected on

other grounds by Mascaro v. Mascaro, 803 A.2d 1186, 1194 (Pa.2002).

In addition, the fact-finder is entitled to weigh the evidence presented and

assess its credibility. Calabrese, supra.


      Guided by these standards, we turn to the evidence adduced during

the evidentiary hearing on Wife’s support petition.         Husband is the sole

owner of Eden Tool Company (“Eden Tool”) and the sole shareholder in Eden

Properties, LLC (“Eden Properties”). N.T., 9/19/13, p. 4. Wife is a guarantor

on loans and lines of credit of Eden Tool, and the marital residence is

collateral for these loans and credit lines. Id., p. 15.


      Prior   to   the   parties’   separation,   Eden   Properties   had   begun

construction of a new building for Eden Tool and had obtained financing from

the bank for construction purposes.       Id., pp. 13-14.    Husband wanted to

construct a new building due to Eden Tool’s increase in business. Id., pp. 6,



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12, 67.   Both parties guaranteed the loan underlying the construction

mortgage, and the marital residence served as collateral for the loan. Id.,

pp. 15-16.    Wife’s enthusiasm for Husband’s business dimmed when she

discovered that Husband was having an extramarital affair. Id., p. 70.


     The parties disputed whether Husband’s 2011 business income should

be considered in the calculation of support. Eden Tools’ 2011 income was

greater than any other surrounding years. Husband claims that the higher

2011 income was somewhat of an anomaly: he convinced his 5 employees

to put in a lot of overtime in 2011 to make the business grow, but they could

not do that amount of work every year.      Id., pp. 92-93.    Husband also

claimed that the size of his 2011 income was due in part to accounting; his

accountant maximized the figures so that he could convince the bank to

provide financing for the new building. Id., p. 91. He also claimed that he

cannot make 2011-level income again because Eden Tools lost a major

customer. Id., pp. 6, 93-94. Husband also claimed it would be unfair to

include 2011 income in the support calculations, because any increase in his

income was offset by construction expenses for the new facility, which

remains unfinished. Id., p. 6.


     Husband insisted that Wife verbally agreed to accept rental income

from Eden Tool in lieu of support.    Wife claims she never made such an

agreement but only agreed to discuss this arrangement with her attorney.

Id., pp. 27-28.   Wife testified that she declined Husband’s proposal after

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J-A26034-14


discussing it with counsel.    Id.   There was no written agreement to

substitute rental income for support. Id.


     The trial court ruled that Wife never accepted Husband’s proposal to

substitute rental income for support.   The court credited Wife’s assertion

that she discussed this concept with counsel and then turned down the

proposal. Trial Court Opinion, 10/11/13, p. 3.


     The trial court also ruled that Husband’s 2011 income should be

considered for support purposes.     Citing Lehman v. Lehman, 636 A.2d

1172 (Pa.Super.1994), the court held that Husband’s decision to invest

funds in a new facility for Eden Tools did not render these funds unavailable

for support purposes.   Trial Court Opinion, 10/11/13, pp. 3-4.     Applying

Lehman, the court determined the income was available for support

regardless of whether Husband made the investment decision prior to or

after separation or whether both parties were signatories to a loan or

promissory note.


     Husband raises three issues on appeal:


           THE TRIAL COURT ABUSED ITS DISCRETION WHEN
           IT FAILED TO CONSIDER AND APPLY THE DOCTRINE
           OF PROMISSORY ESTOPPEL TO THE FACTS AS
           ADDUCED BY THE PARTIES’ TESTIMONY.

           THE TRIAL COURT ABUSED ITS DISCRETION WHEN
           DETERMINING HUSBAND'S INCOME FOR SUPPORT
           BY   FAILING   TO   CALCULATE    HUSBAND'S
           DISPOSABLE INCOME ON A NET CASH FLOW BASIS,


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            AND BY NOT REDUCING FROM HUSBAND'S INCOME
            FROM   HIS   CORPORATION,    ALL  AMOUNTS
            BORROWED, OR PAID FROM ONGOING OPERATIONS
            FOR  CAPITAL   EXPENDITURES   WHICH  WERE
            NECESSARY FOR THE CONTINUED OPERATIONS AND
            SMOOTH RUNNING OF THE BUSINESS.

            THE TRIAL COURT ABUSED ITS DISCRETION IN
            ATTRIBUTING ANY RENTAL REAL ESTATE INCOME
            TO HUSBAND AS INCOME AVAILABLE FOR SUPPORT,
            WHEN THE UNREFUTED TESTIMONY OF RECORD
            WAS THAT FOR THE ONE RENTAL PROPERTY THAT
            PRODUCED A POSITIVE CASH FLOW, ALL RENT
            AFTER SEPARATION WAS PAID NOT TO HUSBAND,
            BUT RATHER TO WIFE.

Brief For Appellant, pp. 13, 16, 18.

      Husband first argues that Wife is not entitled to support under the

doctrine of promissory estoppel, because she agreed to accept rental income

instead of child support, and Husband relied on this promise to his

detriment. To prove promissory estoppel, Husband must demonstrate: (1)

the promisor made a promise that she should have reasonably expected

would induce action or forbearance on the part of the promisee; (2) the

promisee actually took action or refrained from taking action in reliance on

the promise; and (3) injustice can be avoided only by enforcing the promise.

Crouse v. Cyclops Industries, 745 A.2d 606, 611 (Pa.2000). Husband’s

argument runs aground because the trial court found as fact that Wife did

not agree to accept rental income in lieu of support. While she considered

Husband’s proposal to substitute rental income for support, she ultimately

turned it down. Because we defer to the trial court’s findings of fact that are


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J-A26034-14


supported by the record, Calabrese, supra, 682 A.2d at 395, Husband

cannot prove element (1) of promissory estoppel, a promise by the

promisor.      Thus, Husband cannot obtain relief under the doctrine of

promissory estoppel.

        Husband’s second argument is that the trial court erred by including

Husband’s 2011 income in its support calculations, because Husband cannot

repeat 2011’s unusually large profits, and 2011 earnings were substantially

reduced by construction expenses on a new building for Husband’s company.

        A short sketch of the rules governing child support is helpful.

“Generally, the amount of support to be awarded is based upon the parties'

monthly net income.”        Pa.R.Civ.P. 1910.16-2.     The court determines each

spouse’s “monthly net income” by subtracting permissible items from each

spouse’s “monthly gross income”. Pa.R.Civ.P. 1910.16-2(c)-(d). When, as

here,    the   parties’   combined     monthly   net   income   exceeds   $30,000,

Pa.R.Civ.P. 1910.16-3.1 instructs the court to take the following steps:


        (1)    calculate basic child support under a formula provided in

               Pa.R.Civ.P. 1910.16-3.1(a)(1);


        (2)    adjust this amount on the basis of criteria within Pa.R.Civ.P.

               1910.16-4 and 1910.16-65; and


____________________________________________


5
    None of these criteria have any bearing on the present appeal.



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        (3)   in the court’s discretion, make further adjustments based on

              factors outlined in Pa.R.Civ.P. 1910.16-5, including but not

              limited to “unusual needs and unusual fixed obligations” and

              “other relevant and appropriate factors.”


        The trial court did not state explicitly that it took these steps when it

computed the amount of child support Husband owed.                Implicit in its

decision, however, was the determination that Husband’s 2011 income is

includable under the child support formula in step (1), and that Husband was

not entitled to a downward adjustment in step (3). Based on our Supreme

Court’s analysis in Labar v. Labar, 731 A.2d 1252 (Pa.1999), we conclude

that the trial court’s decision was an appropriate exercise of its discretion.

In Labar, the husband owned a bowling alley and had to make significant

capital expenditures to convert an antiquated manual scoring system into a

modern, computerized scoring system, including pinsetters.         The husband

argued that the court should deduct these expenses from his income in its

calculation of support, because these expenses were "necessary for the

continued operation and smooth running of the business." Id., 731 A.2d at

1257.


        The Supreme Court agreed with the husband.         The Court instructed

that when the trial court determines the financial responsibilities of parties to

a dissolving marriage, the trial court must look to the actual disposable

income of the parties.      Id. at 1255.     Such “income must reflect actual

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J-A26034-14


available financial resources and not the oft-time fictional financial picture”

created by the application of federal tax laws. Id. The owner of a closely

held corporation cannot avoid his support obligation by sheltering income

that should be available for support by manipulating salary, perquisites,

corporate expenditures and/or corporate distribution amounts.          Id.   In

situations where the individual with the support obligation is able to control

the retention or disbursement of funds by the corporation, he still will bear

the burden of proving that such actions were “necessary to maintain or

preserve” the business. Id. (citing McAuliffe v. McAuliffe, 613 A.2d 20,

23 (Pa.Super.1993)). On the other hand, if the individual can demonstrate

that an expense is "necessary for the continued operation and smooth

running of the business," the court should deduct this expense from gross

income to arrive at net income for support purposes.      Id.    The husband’s

installation of a computerized scoring system in the bowling alley was

deductible from gross income, since it was necessary to the continued

operation of the bowling alley.    Without this improvement, the business

could not have remained competitive with other bowling alleys. Id. at 1258.


      While Labar permits deduction of expenses from the calculation of

income that are essential to keep the business alive, non-essential expenses

that merely help the business grow are not deductible.          For example, in

McAuliffe, supra, this Court rejected the husband’s argument that his

increased expenditures for business equipment (from $66,000 in 1989 to


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$201,000 in 1990) were deductible, because he made these expenditures for

"new reserves" and to expand the business rather than to continue its

smooth operation and running.            McAuliffe, 613 A.2d at 22.   McAuliffe

suggested that the sudden increase in expenditures represented the

husband’s attempt to dodge his support obligations.         Id. (citing King v.

King, 568 A.2d 627 (1989)) (“to allow husband to shield substantial income

of his business from consideration in determining his support obligation

without more evidence as to a legitimate need to do so would allow spouses

with support obligations to evade their obligations by unilaterally reducing

their income. This is obviously impermissible under Pennsylvania law”).


       We view the present case as similar to McAuliffe. Husband’s decision

to spend capital on a new building was discretionary (McAuliffe) instead of

mandatory (Labar), because the purpose of the new building was to expand

Husband’s business instead of preventing its demise. Proof that the decision

to make these expenditures was discretionary instead of necessary arises

from the fact that the building was never completed, yet the company

remains in good shape today6.            Husband did not have to build the new

building in order for his business to survive.


____________________________________________


6
  Gross revenues for the business were $1,302,136.00 in 2011, $828,375.00
for 2012, and $500,000 for the first six months of 2013. N.T., 9/19/13, pp.
6, 61.



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       Husband argues that he decided to construct a new building before

separating from Wife; that Wife initially supported this decision and

guaranteed the loan for construction expenses; and that once he and Wife

separated, it was too late for him to back out, because the bank had already

advanced the loan, and it had to be repaid. None of this overrides the fact

that construction of the new building was discretionary, rather than an act

that was necessary to keep Husband’s business from foundering7.


       Lehman,       supra,     further    confirms   that   Wife’s   pre-separation

acceptance of the construction project does not entitle Husband to deduct

construction expenses from his support obligations.           In Lehman, several

years before separation, the husband decided to buy two businesses, and

both spouses signed promissory notes for loans to fund the purchase. Even

though the wife agreed to the purchase, this Court held that the husband

could not deduct loan payments from his support obligations.             Just as the

husband in Lehman could not deduct pre-separation obligations, neither can

Husband do so here.         Lehman is consistent with the principle that Labar




____________________________________________


7
  Husband’s counsel stated during oral argument that it was necessary to
construct a new building because Husband had been operating the business
in a garage attached to Wife’s house, a violation of local zoning codes. We
do not see any evidence of this point in the record (and even if there was
such evidence, the trial court was free to disregard it in its role as finder of
fact).



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and McAuliffe illustrate in greater detail: a discretionary decision to expand

one’s business is not a valid excuse for reducing support obligations 8.


       In his final argument, Husband complains that the trial court attributed

rental real estate income to Husband in its support calculations even though

Husband previously paid rental income directly to Wife.           Husband waived

this argument by failing to raise it in his Pa.R.A.P. 1925(b) statement.

Lazarski v. Archdiocese of Philadelphia, 926                   A.2d 459, 463-64

(Pa.Super.2007) (former parishioner failed to preserve for appellate review

claim that trial court erred by prematurely granting summary judgment

before adequate discovery had been conducted, where he failed to include

this claim in his statement of matters complained of on appeal).            Even if

Husband preserved this issue for appeal, the trial court’s decision was

appropriate.        Husband requests exclusion of rental income from the

calculation    of    monthly    gross    income    under   Pa.R.Civ.P.   1910.16-2.

Pa.R.Civ.P. 1910.16-2(a)(2) provides, however, that gross income includes

“net income from business or dealings in property”. Under this rule, rental


____________________________________________


8
  Husband also tried to explain away 2011’s large earnings as the product of
an unusually large amount of overtime work by his employees that they
cannot replicate every year. The trial court properly rejected this argument.
As the sole proprietor of his business, Husband has the authority to demand
the same amount of overtime each year or to find additional employees for
overtime work, but he simply finds it inconvenient to demand a 2011 level of
effort from himself or his employees.



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income clearly is part of Husband’s gross income.      No other rule provides

any ground for excluding rental income from support calculations.


      Notably, Husband only paid rental income to Wife before she filed for

support but not afterward.     Because he has continued to receive rental

income after Wife filed for support but no longer pays it directly to Wife, this

income constitutes gross income under Rule 1910.16-2(a)(2).


      For these reasons, we affirm the trial court’s order.


      Order affirmed. Record modified to include transcript from evidentiary

hearing on September 19, 2013.


      Judge Mundy joins in this memorandum.


      Judge Bowes concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2015




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