J-A25022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.W.,                                            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

B.K.V., JR.,

                            Appellee                  No. 620 MDA 2016


                 Appeal from the Order Entered March 29, 2016
                In the Court of Common Pleas of Lebanon County
                    Domestic Relations at No(s): 2008-5-0774


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                        FILED DECEMBER 06, 2016

        This is an appeal by D.W. (“Mother”) from a support order relating to

B.V. (“Child”), her seventeen-year-old son with B.K.V., Jr. (“Father”).1 We

are compelled to reverse and remand.

        The trial court described the parties as “frequent flyers in Lebanon

County Support Court.” Trial Court Opinion, 3/29/16, at 1. The trial court

summarized the facts and procedural history as follows:

              MOTHER and FATHER are the parents of [B.V.], who was
        born [i]n March [of] 1999. The parties were married on May 1,
        1998 and separated on September 12, 2008. The parties had
        originally reached a private agreement on the amount of child
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   The parties “also have an emancipated [son] who is not subject to” the
order appealed. Trial Court Opinion, 3/29/16, at 2 n.1.
J-A25022-16


       support, but MOTHER requested modification on August 5,
       2014.[2] After a hearing on December 11, 2014, the Domestic
       Relations Master (DRM) recommended that FATHER pay
       $1,624.65 per month from the date of filing through the end of
       2014 and $1,458.49 per month for 2015.           MOTHER filed
       exceptions and, after hearing oral arguments, we remanded the
       case to the DRM via an Opinion dated March 30, 2015. Among
       other things, we directed the DRM to clarify how she evaluated
       FATHER’s income from 933 Restricted Stock Units (RSUs) that
       were awarded to him in 2010 and vested in 2014.

              Subsequent to a remand hearing conducted on April 23,
       2015, the DRM explained that she evaluated the stocks based on
       the difference between their value on the date of the property
       settlement, $35.63, and the exercise price, $61.48. She then
       multiplied this difference by 933 to arrive at $24,118.05, which
       figure she added to FATHER’s 2014 income.            In the end,
       FATHER’s obligation, effective August 5, 2014 through the end of
       the year, was $1,639.65 per month, about $15 per month more
       than the previously-calculated figure.        For 2015, FATHER’s
       obligation was $1,505.92 per month, less than a $50 per month
       increase from the previously calculated figure. MOTHER again
       filed exceptions, arguing, inter alia, that the DRM valued 836 of
       FATHER’s stock options (award no. 19655) incorrectly, and that
       she failed to include the income from 359 RSUs (award no.
       41075) that vested on August 1, 2015.

             While we denied most of MOTHER’s Exceptions via an
       Opinion issued on August 6, [2015,] we agreed that the DRM’s
       methodology for valuing the 836 stock options was incorrect.
       Instead, to account for the quid pro quo value of the stock
       options at equitable distribution, we measured the difference in
       the present value, $78.10 (as of the date of the remand hearing,
       April 23, 2015), and the value on the date of the property
       settlement, $35.63. Multiplying this figure times the number of
       shares yielded $29,786.68.         Subtracting this figure from
____________________________________________


2
   Mother “works for the Pennsylvania House of Representatives in Caucus
Operations,” and Father “sells medical devices, which require[s] him to
travel extensively. In addition to his salary and commissions, he receives
stock options and corporate perquisites as part of his compensation
package.” Trial Court Remand Opinion, 3/30/15, at 2.



                                           -2-
J-A25022-16


     $65,291.60 ($78.10 x 836 shares) yielded $35,504.92, which
     number we added to FATHER’s 2015 gross income. This resulted
     in a monthly obligation for 2015 of $1,639.92.

           We specifically declined to address the RSUs that vested
     on August 1, 2015, noting that they were not yet vested at the
     time of the hearing, but that we would not prevent MOTHER
     from addressing them once they did vest.        Predictably, on
     September 1st, MOTHER filed [a] Petition for Modification. A
     hearing was conducted on October 29, 2015 and the DRM issued
     her Recommendations on November 20th[, 2015].            Again,
     MOTHER timely filed exceptions, disputing the DRM’s
     methodology in evaluating the RSUs.

           We heard oral arguments on February 23, 2016. At oral
     argument, both counsel agreed that it made little sense to
     continue fighting over relatively small amounts of money.
     Counsel therefore asked if we would agree to receive and base a
     prospective decision upon a stipulation of facts. We afforded the
     parties 10 days to submit a stipulation regarding their income.
     We also agreed that if the parties could reach a consensus on
     the facts, we would fashion a Court Order dictating FATHER’s
     prospective obligation based on this stipulation rather than
     remanding the case to the DRM yet again. On March 7, we
     received a Stipulation of Facts showing that:

          (1) FATHER’s wages, tips and compensation, as
          reflected by his W-2, were $248,754.40, his
          Medicare wages and tips were $266,754.40 and his
          gross pay was $271,131.37.

          (2) MOTHER’s wages, tips and compensation for
          2015, as reflected by her W-2, were $55,980.63,
          and her Medicare wages and tips were $59,732.84.
          Although the stipulation itself did not list MOTHER’s
          gross pay, her unofficial W-2, which was attached,
          lists her gross pay at $60,036.13.

          (3) FATHER had $30,728.88 in gross income from
          stock options in 2015. The net, post-tax value of the
          RSUs FATHER exercised on August 1, 2015 was
          $19,519.11. His net receipts from RSUs in 2015
          [were] $21,243.69.


                                   -3-
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           (4) He has 194 RSUs that were granted after the
           divorce that will mature on July 30, 2016.3
                 3
                   He also has stock options that will
                 mature in 2017, but this will be after the
                 parties’ son has become emancipated.

           (5) FATHER contributed $18,000 to his 401(k) in
           2015.

           (6) FATHER paid $4,981.41 in 2015 for medical,
           dental, vision and life insurance benefits for himself
           and his family.

           (7) MOTHER paid $600.29 in 2015 for medical,
           dental and vision benefits that will benefit herself
           and her children.

           (8) MOTHER made $3,752.21 in mandatory
           contributions to the State Employees Retirement
           System.

           (9) FATHER pays $1,700 per month in alimony to
           MOTHER. This payment will terminate on March 31,
           2016.

           (10) FATHER’s fixed vehicle allowance of $398.44 is
           part of his income.

           (11) Neither party has experienced an increase in
           income to date in 2016.

Trial Court Opinion, 3/29/16, at 2–6 (some footnotes omitted).

     The trial court entered an order on March 29, 2016, directing Father to

pay $1,571.96 per month in child support plus $157.20 per month in

arrears, effective August 1, 2015.   Effective April 1, 2016, the amount of

child support increased to $1,710.45 per month, and the amount in arrears

increased to $171.04 per month.       The court directed Father to provide


                                     -4-
J-A25022-16


medical coverage through his employment. Mother filed a timely appeal on

April 19, 2016.      Both Mother and the trial court complied with Pa.R.A.P.

1925.3

       Mother raises the following issues in her appellate brief:

    A. Did the Trial Court err as a matter of law and/or abuse its
       discretion in its March 29, 2016 Order when it failed to calculate
       as part of [Father’s] income Vested Stock Options from 2014
       that it previously included as income in its August 4, 2015 Order
       for calendar year 2015?

    B. Did the Trial Court err as a matter of law and/or abuse its
       discretion in its March 29, 2016 Order when it failed to provide
       an adjustment for the health insurance premium [Mother]
       contributes to cover the parties’ minor child?

    C. Did the Trial Court err[] as a matter of law and/or abuse[] its
       discretion in its March 29, 2016 Order when it deducted
       [Father’s] voluntary retirement contributions of $18,000.00
       annually from his gross income in determining his support
       obligation?

Mother’s Brief at 10.4



____________________________________________


3
   We note the deplorable state of the record certified to us on appeal. While
a list of ninety-four docket entries was provided, none of the items in the
record bear corresponding numbers, rendering the numbered list useless as
an aid to locating documents. There are eight subparts to the record, two of
which are single pages, with no explanation or organization to the subparts.
While we could have remanded for the provision of organization to the
record, with considerable waste of time and talent we have been able to
locate the items crucial to our disposition of this case. Such dereliction will
not be tolerated in the future.
4
  For the sake of clarity and ease of disposition, we have re-ordered issues
B and C.



                                           -5-
J-A25022-16


      Our standard of review of a trial court’s decision in a support case 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, 853–854 (Pa. Super. 2012) (citations

omitted).

      The trial court explained the atypical process in this case due to the

parties’ agreement to a stipulation of facts, as follows:

             The situation we face in the case at bar is different from
      the norm. Here, the parties have agreed to a stipulation of
      facts, and they have asked us to determine support based upon
      that stipulation and our contextual knowledge about the parties
      gleaned via the extensive support litigation we handled in 2015.
      Our Superior Court has long recognized that courts have wide
      discretion when handling support matters. See Kotzbauer v.
      Kotzbauer, 937 A.2d 487, 489 (Pa. Super. 2007). Given the
      tortured history of this case, and given the fact that both counsel
      have asked us to eschew the so-called “normal” support process
      in Lebanon County, we will undertake the unusual step of
      eschewing a remand to the DRM in favor of simply rendering our
      own de novo decision based upon the stipulation of the parties.

Trial Court Opinion, 3/29/16, at 6–7.

      In a three-paragraph argument, and citing testimony from a Master’s

hearing on October 29, 2015, Mother first asserts that Father has recurring

                                      -6-
J-A25022-16


stock options in 2014, 2015, 2016, and 2017. Mother’s Brief at 19 (citing

N.T., 10/29/15, at 15).      She contends that the trial court concluded in an

August 4, 2015 order that the 2014 stock options shall be included as

income for the calendar year 2015. Id. She maintains that this conclusion

provided additional monthly income attributable to Father of $2,958.74. Id.

(citing Trial Court Opinion (Exceptions), 8/4/15, at 14–15.) Mother suggests

the trial court relied on MacKinley v. Messerschmidt, 814 A.2d 680 (Pa.

Super. 2002), for the proposition that stock options must be considered as

income for purposes of support. She further avers that while the trial court

indicated it would consider the vested stock options as part of Father’s 2015

income, Trial Court Opinion (Exceptions), 8/4/15, at 14 n.12, the trial court,

in its March 29, 2016 order, modified the child support payments “effective

August 1, 2015.”    Mother’s Brief at 20.    The effect of this action, Mother

suggests, is that the trial court never included in its calculations the 2014

stock options for the period from August of 2015 through December of 2015.

Mother posits that this failure by the trial court granted to Father a five-

month “increase in income for which he was not paying support” to Child.

Id. Therefore, Mother claims the amount of Father’s income for the months

August 2015 through December 2015 should be increased by $2,958.74 per

month. Id.

      Based upon the following explanation by the trial court, we conclude

that this issue is waived:


                                      -7-
J-A25022-16


            As outlined in our March 29, 2016 Opinion, the parties
      requested us to render a decision based upon a Stipulation of
      Fact. We acceded to the parties’ request. When the parties
      forwarded the Stipulation, we had a question about what we
      perceived to be an ambiguity regarding FATHER’s RSU. As a
      result, we authored a letter to the parties.     That letter is
      attached to this Opinion as Exhibit A. Following our letter, we
      received a response from FATHER’s counsel. That response is
      attached as Exhibit B.1 MOTHER’s counsel did not respond
      at all.
            1
              We believe that at least one date is incorrect. We
            recall receiving the letter before we issued our March
            2016 Opinion.

            Fairly read, the communication outlined above between
      counsel and [this c]ourt confirmed our belief that FATHER’s total
      RSU for 2015 was $30,728.88. To the extent that MOTHER now
      claims that we erred in determining the amount of the RSU as
      set forth on the Stipulation, MOTHER has no one to blame but
      herself.   We afforded her with the opportunity to present
      information via the stipulation regarding the RSU’s and the
      opportunity to supplement the record and /or object to FATHER’S
      claim that he received “only” $30,728.88 in RSU payments
      during 2015. She did neither. Based upon the communication
      between counsel and [this c]ourt outlined above, it would be
      disingenuous to argue that this [c]ourt erred by valuing
      FATHER’s RSU receipts at anything other than $30,728.88.

Pa.R.A.P. 1925(a) Opinion, 4/28/16, at 2–3 (emphases added).

      The parties specifically stipulated that Father’s income in 2015

included the amounts listed on his W-2 and included only the total stock

options exercised of $30,728.88 before taxes.      When the trial court later

requested clarification, Mother did not respond; therefore, the trial court had

no further information from Mother and no way to ascertain Mother’s

disagreement with the trial court’s determination of Father’s income.      “On

appeal, we will not consider assignments of error that were not brought to

                                     -8-
J-A25022-16


the tribunal’s attention at a time at which the error could have been

corrected or the alleged prejudice could have been mitigated.”    State Farm

Mutual v. Dill, 108 A.3d 882, 885 (Pa. Super. 2015) (en banc), appeal

denied, 116 A.3d 605 (Pa. 2015) (citing Tindall v. Friedman, 970 A.2d

1159, 1174 (Pa. Super. 2009)). This issue is waived.

      We next address whether the trial court failed to provide an

adjustment for the health insurance premium [Mother] contributes to cover

the parties’ minor child.   Mother references Pa.R.C.P. 1910.16-6(b), which

provides that health insurance premiums that provide coverage on behalf of

the parties’ children “shall be allocated between the parties in proportion to

their net incomes....” Mother’s Brief at 22. Mother refers to a methodology

for calculating the allocable premium amount where specific evidence is not

proffered by the moving party:

      In the event that evidence . . . is not submitted by either party,
      it shall be calculated as follows. First, determine the cost per
      person by dividing the total cost of the premium by the number
      of persons covered under the policy. Second, multiply the cost
      per person by the number of persons who are not owed a
      statutory duty of support, or are not parties to, or the subject of
      the support action. The resulting amount is excluded from
      allocation.

Pa.R.C.P. 1910.16-6(b)(2).

      In accordance with Pa.R.C.P. 1910.16, Mother maintains that the trial

court should have utilized the same methodology it used to calculate the

portion of Father’s premium to be allocated between the parties to calculate

the portion of Mother’s premium to be allocated between the parties.

                                     -9-
J-A25022-16


Instead, according to Mother, it granted Husband an adjustment for the

portion of his insurance premium covering Child but did not do the same for

Mother, where her insurance policy grants Child health benefits beyond that

of Father’s insurance. Mother’s Brief at 23.

      Father responds that in determining the total adjustment to be made

for payment of the insurance premium, the trial court excluded three-fourths

“of the amount which Father pays for health insurance, and allowed only

one-quarter (1/4) of the payments which Father actually makes, indicating

that since four individuals were covered, and only one” is the minor child,

“only one-quarter (1/4) of the premium should be allocated” for Child.

Father’s Brief at 13–14. Mother’s annual cost for her premium apparently is

$600.29, which covers three individuals on her plan.    Trial Court Opinion,

3/29/16, at 5. Thus, she is contending that one-third of these premiums, or

$200.00 annually, is the amount the court should have allocated toward

insurance. Father also notes that Father, not Mother, has been ordered to

provide health insurance. Father’s Brief at 14.

      The trial court addressed the issue as follows:

            According to the parties’ stipulation, both MOTHER and
      FATHER pay money for medical, dental and vision insurance. The
      stipulation indicates that FATHER contributes $4,981.41 “for the
      benefit of himself and his family.”      The stipulation further
      stipulates that MOTHER contributes $600.29 “for the benefit of
      herself and her children.” Nothing was specifically presented to
      indicate which children were or were not covered by the amounts
      contributed by each parent.




                                    - 10 -
J-A25022-16


          Health    insurance   premiums    are     addressed    in
     Pennsylvania’s Support Guidelines. Generally, health insurance
     premiums are to be

          allocated between the parties in proportion to their
          net . . . incomes, including the portion of the
          premium attributable to the party who is paying it,
          as long as a statutory duty of support is owed to the
          party who is paying the premium. If there is no
          statutory duty of support owed to the party who is
          paying the premium, the portion attributable to that
          person must be deducted from the premium as set
          forth in subdivision (2) below.

     Pa.R.C.P. 1910.16 -6(b)[(1)]. Subdivision (2) states:

          When the health insurance covers a party to whom
          no statutory duty of support is [owed . . . ] the
          portion of the premium attributable to them must be
          excluded from allocation.

     Pa.R.C.P. 1910.16-6(b)(2). Moreover, the Support Guidelines
     also create a methodology that can be applied when a parent
     pays for health insurance that covers more than simply the
     children who are the subject of the Support Order. The rules
     state:

          In the event that evidence as to this portion is not
          submitted by either party, it shall be calculated as
          follows. First; determine the cost per person by
          dividing the total cost of the premium by the number
          of persons covered under the policy.          Second,
          multiply the cost per person by the number of
          persons who are not owed a statutory duty of
          support, or are not parties to, or the subject of the
          support action. The resulting amount is excluded
          from allocation.

     Pa.R.C.P. 1910.16-6(b)(2). Furthermore, the rules provide an
     example that is almost exactly on point:

     Example 3. The parties are divorced and Mother is the obligee of
     a child support order. Father, the obligor, pays $200 per month
     toward the cost of a health insurance policy provided by his

                                  - 11 -
J-A25022-16


     employer that covers himself and the parties’ child. Mother pays
     $400 per month for her employer-sponsored health insurance
     that covers only herself. The amount of the premium Father
     pays to cover the parties’ child, $100 ($200 premium divided
     between two covered persons, Father and the child), will be
     allocated between the parties in proportion to their respective
     incomes. The portion of the premium that covers Father will not
     be allocated because the parties are no longer married and he is
     not owed a duty of support by Mother. The premium Mother
     pays to provide her own coverage will not be allocated because
     the parties are no longer married and she is not owed a duty of
     support by Father.

     Pa.R.C.P. 1910.16-6(b)[Example 3].

           In this case, there is no need for both MOTHER and
     FATHER to provide insurance coverage for the children. In our
     Court Orders entered in 2015, we ordered that FATHER provide
     health insurance for the children.       In her most recent
     Recommendation, the DRM similarly imposed a responsibility
     upon FATHER to provide health insurance for the children.

           Without proof that MOTHER’s payment of $600.29 per year
     was needed to purchase insurance that was not available
     through FATHER’s plan, we are not inclined to apply the Support
     Guidelines to MOTHER’s payment of $600.29. With respect to
     FATHER’s payment of health insurance benefits, we note that
     FATHER’s payment of $4,981.41 covers four individuals, only
     one of whom is the child in question. Therefore, the calculation
     that applies in this case will be as follows:

          (1) $4,981.41 ÷ 4 individuals covered = $1,245.35
          per person.

          (2) $1,245.35 per person x 3 individuals not owed a
          duty of support = $3,736.06 that must be excluded
          from consideration.

          (3) $1,245.35 = the amount of FATHER’s insurance
          contribution that can be allocated solely for the child
          at issue.




                                  - 12 -
J-A25022-16


      Based upon the above, we will allocate the sum of $1,245.35 to
      the parties in accordance with their percentage of net income as
      outlined in the preceding sections of the Support Guidelines.

Trial Court Opinion, 3/29/16, at 11–14.

      We have considered the arguments of the parties and the explanation

of the trial court and considered the record as a whole.    Based upon the

record, we conclude that this issue is meritless.

      Finally, Mother asserts, relying on Portugal v. Portugal, 798 A.2d

246, 253 (Pa. Super. 2002), that in its August 4, 2015, and March 29, 2016

orders, the trial court declined to include Father’s voluntary retirement

contributions as income for purposes of child support.     Mother’s Brief at

20. Mother maintains that she sought Father’s voluntary contributions, not

Father’s employer’s contributions. She avers that the parties’ Stipulation of

Facts provided that Father voluntarily contributed $18,000 to his 401(k) in

2015. Mother identified the issue in her Pa.R.A.P. 1925(b) statement.

      In Portugal, the wife argued that the trial court erred in failing to

include the husband’s contribution to his 401(k) plan and his employer’s

matching contribution to the plan, in the court’s determination of the

husband’s income. The Portugal Court examined Pa.R.C.P. 1920.16-5 and

concluded, “Upon our consideration of this provision, we find that only non-

voluntary retirement payments are properly excludable from a parent’s net

monthly income.     Conversely stated, the trial court must include any

voluntary contributions that a parent makes to his/her retirement


                                    - 13 -
J-A25022-16


plan as income for support purposes.”              Portugal, 798 A.2d at 252

(emphasis added). An employer’s contributions to a pension plan were held

to constitute income for purposes of support “if the employee could access

his employer’s contributions (regardless of penalties) at the time of the

support calculation.”   Id. at 253.   In MacKinley v. Messerschmidt, 814

A.2d 680 (Pa. Super. 2002), we articulated that our holding in Portugal was

“based on the dominant interest of the children’s immediate need, as well as

the recognition that children should not be made to wait for support[,] and

parents should not be permitted to defer income to which they are entitled

until they choose to avail themselves of it.” MacKinley, 814 A.2d at 683.

      The trial court provided, based upon the DRM’s disposition, a detailed

and   convincing   explanation   addressing    why    Husband’s    employer’s

contributions properly were not included in the calculation of Husband’s

income. However, that is not the issue identified and presented by Wife.

      In its explanation regarding Husband’s employer’s contribution, and

relying upon the description of the DRM, the trial court identified the types of

retirement plans both parties enjoy, as follows:

            The court directed both [Mother] and [Father] to produce
      records regarding the present ability or inability to access funds
      in their respective employer retirement accounts.

            Mother provided a letter from her employer indicating that
      she is enrolled in a defined benefit plan. Mother is not allowed
      to access the employer contributions to the plan other than as a
      monthly annuity at the time of retirement.




                                      - 14 -
J-A25022-16


           Father provided the Vanguard statements for his 401(k)
     retirement plan, Exh. 4. Father did not provide a plan summary
     for the 401(k) plan. Based on the information provided by Exh.
     4, the plan is a qualified plan.

Trial Court Opinion, 3/29/16, at 8–9 (quoting Supplemental Findings and

Recommendations of Domestic Relations Master, 5/15/15, at 2).            The

specific focus of both the DRM and the trial court was analysis of whether

Husband’s employer contributions were accessible to Husband.

     Our review of the record reveals that Mother’s exceptions to the DRM’s

recommendations identified, inter alia, the Master’s failure to include

Husband’s voluntary contributions to his 401(k) plan as income available for

support.   Upon remand by the trial court, the DRM addressed only the

employers’ contributions.   Mother raised the issue again in her Pa.R.A.P.

1925 (b) statement, and once more, the trial court focused exclusively on

Husband’s employer’s contributions.

     The trial court stated the following in addressing the issue:

     As we see it, both MOTHER and FATHER have contributed
     monies from present income to create resources for future
     retirement. According to the parties’ stipulation, FATHER has
     contributed $18,000.00 to his 401(k) account, which translates
     to approximately 7% of his pre-tax income.           MOTHER has
     contributed $3,752.00 to her retirement account, which
     translates to approximately 6.7% of her pre-tax income. There
     is simply no evidence that either MOTHER or FATHER is “hiding”
     current income by placing it into a retirement account, and there
     is no evidence that either MOTHER or FATHER is attempting to
     circumvent the child support process by manipulating retirement
     contributions to artificially deflate current income. Given their
     respective earnings, we do not find either MOTHER’s retirement
     contribution or FATHER’s retirement contribution to be
     inappropriate or manipulative.

                                   - 15 -
J-A25022-16



            Given that we have concluded that both MOTHER and
      FATHER have set aside an appropriate amount for their own
      future retirement, we will not treat their respective retirement
      contributions differently. As we stated in August of 2015: “What
      is good for the goose is good for the gander.” If we will not be
      considering MOTHER’s decision to set aside 6.7% of her income
      for retirement, then neither will we consider FATHER’s decision
      to set aside 7% of his income for future retirement. In our view,
      this approach effectuates justice for all concerned.

Trial Court Opinion, 3/29/16, at 10–11.

      Our review of the record compels our agreement with Wife that the

trial court erred.    Mother had no discretion but to contribute a designated

percentage of her earnings into the state retirement system, and the trial

court was compelled to deduct those amounts from Mother’s monthly gross

income in calculating her net income.         See Pa.R.C.P. 1910.16-2(c)(1)(C)

(“Unless otherwise provided in these rules, the court shall deduct only the

following items from monthly gross income to arrive at net income: . . . non-

voluntary retirement payments.”) Conversely, Portugal requires that “the

trial court must include any voluntary contributions that a parent makes to

his/her retirement plan as income for support purposes.”        Portugal, 798

A.2d at 252. Thus, we are compelled to remand this matter to the common

pleas court.

      Case remanded for a determination of whether Father’s contributions

to his 401(k) plan are voluntary, and if so, they shall be included as income

to Father pursuant to Portugal and its progeny. In all other respects, the

appeal is affirmed.

                                     - 16 -
J-A25022-16


     Order reversed and case remanded for proceedings consistent with

this Memorandum. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2016




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