J-A27006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DOUGLAS BERTHOLD,                               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

KELLY BERTHOLD,

                         Appellee                    No. 489 WDA 2017


                    Appeal from the Order March 3, 2017
             In the Court of Common Pleas of Allegheny County
                 Family Court at No(s): FD-15-008544-008


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                 FILED JANUARY 3, 2018

      Douglas Berthold (Father) appeals from the March 3, 2017 order that

dismissed his exceptions to the hearing officer’s recommendations and made

the temporary order of child support, dated October 7, 2016, a final order of

court. After review, we vacate in part and affirm in part.

      The trial court provided the following factual and procedural history of

this matter, stating:

      [Father and Kelly Berthold (Mother)] were still married at the
      time of the October 3, 2016 hearing before the hearing officer.
      The Parties have two children, 7 and 10 years old. Custody of
      the younger Child is shared, while Father has primary custody of
      the eldest Child. Father resides in the marital home.

      On November 2, 2015, Father filed for child support and alimony
      pendent lite (APL). At the time, the Parties shared custody of
      their two boys. A Support Order was entered by consent at that
      time, with Mother paying $894.00 per month, $400.00 of which
      was APL. In May of 2016, by way of another consent order,
      Father assumed sole physical custody of the older son, with
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     custody of the younger boy remaining shared. In July of 2016,
     Father filed for a modification of support as a result of this new
     custody arrangement as well as his claim that he had to reduce
     his employment hours, and consequently his income, due to the
     change in custody.

     Evidence was presented that Father, who had worked full time
     for his family’s business for the past 20 years, had recently
     reduced his hours from over 40 to only 30 hours per week. He
     also testified that he had historically received bonuses of
     between $10,000.00 and [$]20,000.00 per year but would now
     not be entitled to a bonus due to his reduced work schedule.
     Ultimately, the hearing officer determined that Father’s schedule
     reduction at his father’s business was “suspect” and she held
     Father to his previous income. She denied Father’s request for a
     mortgage deviation. After holding Father to his previous income
     and bonus income, and making all appropriate income and
     expense adjustments, the Hearing Officer found the parties’
     incomes to be substantially similar, making APL inappropriate.
     She recommended a monthly child support obligation of $365.93
     per month, plus arrears.

     Father filed nine exceptions[,] which [the court] dismissed on
     March 3, 2017 after argument. Father filed a timely appeal and,
     in response to [the court’s] April 5, 2017 Order, filed a Concise
     Statement of Matters Complained of on Appeal pursuant to
     Pa.R.A.P. 1925(b).

Trial Court Opinion (TCO), 6/9/17, at 1-2.

     Now, on appeal, Father raises two issues for our review:

     1. Did the trial court abuse its discretion by calculating
        Appellee/Mother’s child support obligation pursuant to a
        shared support calculation where the parties have two
        children and Appellant/Father has sole custody of one of the
        children?

     2. Did the trial court abuse its discretion in calculating
        Appellee/Mother’s child support obligation by failing to award
        Appellant/Father a mortgage deviation?




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Father’s brief at 4.1

       Initially, we note that when reviewing a child support order, we are

guided by the following well-settled standard:

       “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.” Calabrese v. Calabrese, 452
       Pa. Super. 497, 682 A.2d 393, 395 (1996). 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. Id. 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.
       Depp v. Holland, 431 Pa. Super. 209, 636 A.2d 204, 205-06
       (1994). See also Funk v. Funk, 376 Pa. Super. 76, 545 A.2d
       326, 329 (1988). 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. Depp, 636 A.2d at 206.

McClain v. McClain, 872 A.2d 856, 860 (Pa. Super. 2005) (quoting Samii

v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004)).

       In regard to his first issue, Father argues that the trial court erred

when it calculated Mother’s support obligation for their two children, in that




____________________________________________


1 We note that in addition to its discussion relating to the two issues Father
has raised in his appeal to this Court, the trial court also discussed its
determination that Father was held to his prior salary and bonus income,
i.e., his earning capacity - not his actual reduced income; that Mother’s
gross yearly income should not include a projected salary raise that she had
not yet received; and that the parties’ incomes were substantially equal,
making spousal support inappropriate.



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Father has sole custody of the older child. Specifically, he contends that the

court did not comply with Pa.R.C.P. 1910.16-4(d)(2), which states:

      (2) Varied Partial or Shared Custodial Schedules. When the
      parties have more than one child and each child spends either
      (a) different amounts of partial or shared custodial time with the
      party with the higher income or (b) different amounts of partial
      custodial time with the party with the lower income, the trier of
      fact shall add the percentage of time each child spends with that
      party and divide by the number of children to determine the
      party’s percentage of custodial time. If the average percentage
      of custodial time the children spend with the party is 40% or
      more, the provisions of subdivision (c) apply.

      Essentially, Father argues that pursuant to Rule 1910.16-4(d)(2),

Mother’s support obligation should be “calculated pursuant to the sole child

support guideline because her percentage of time with the children … is

25%: 50% for [younger child] + 0% for [older child] = 50% / 2 = 25%[.]”

Father’s brief at 11-12.   In other words, Father asserts the court should

have calculated Mother’s support obligation based on Father’s having

custody of both children because Mother’s percentage of custodial time is

less than 40%, i.e., he claims that the support obligation was erroneous

because it was based on a shared 50/50 custody of both children. Id. at 12.

To further emphasize this point, Father contends that Mother’s support

obligation of $365.93 per month was arrived at by applying “a shared

custody deviation as well as an equalization of incomes, both of which fall

within Pa.R.C.P. 1910.16-4(c)(2) regarding substantial or shared physical




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custody[,]” which is not the situation here.          Id. at 12-13 (footnote

omitted).2     Father then sets forth charts, calculating the child support

obligation arrived at under both Rule (d)(2) and Rule (c)(2), contending that

pursuant to subsection (d)(2) he would be entitled to $956.74 per month

and under subsection (c)(2) he would only receive $365.93 per month,

which is the amount awarded to him.

        The trial court explained the basis for its determination of Mother’s

support obligation as follows:

        Father contends … that the hearing officer did not properly
        adhere to Pa.R.C.P. 1910.16-4(d)(2) regarding varying custodial
        times in reaching her recommended obligation. The rule states:
        “When the parties have more than one child and each child
        spends different amounts of partial or shared custodial time with
        the obligor, the trier of fact shall add the percentage of time
        each child spends with the obligor and divide the number of
        children to determine the obligor’s percentage of custodial time.
        If the average percentage of time the children spend with the
        obligor is 40% or more, the provisions of subdivision (c) above
        apply.”

        The Hearing Summary states: “Calculation includes the cost to
        [Mother] for medical insurance for [Father] and the children, the
        mortgage expense on the marital residence, and shared custody
        of [younger child].” There is no indication that Mother was given
        a deviation for shared custody. To the contrary, it indicates only
____________________________________________


2   Rule 1910.16-4(c)(2) states in pertinent part:

        If the parties share custody equally and the support calculation
        results in the obligee receiving a larger share of the parties’
        combined income, then the court shall adjust the support
        obligation so that the combined monthly net income is allocated
        equally between the two households. In those cases, spousal
        support or alimony pendent lite shall not be awarded.



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       that the hearing officer considered that only custody of one child
       was shared when making her calculation.

TCO at 4 (footnote omitted).

       Before we respond to Father’s issues, we note that the certified record

does not contain a transcript; nor does it contain the hearing officer’s

decision.    However, both the transcript of the hearing before the hearing

officer and the resulting order are contained in the reproduced record. “It is

well-established     in   this   Commonwealth    that   it   is   ‘the   appellant’s

responsibility to order the transcript required and ascertain its presence in

the record prior to certification for appeal.’” Commonwealth v. O’Black,

897 A.2d 1234, 1238 (Pa. Super. 2006).             Nevertheless, because the

transcript and the hearing officer’s recommendation are contained in the

reproduced record and have not been disputed, we may consider them. See

Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012).

       We recognize that the trial court relied upon the hearing officer’s

recommendation to arrive at the amount of the support due.3 However, the
____________________________________________


3 The hearing officer’s recommendation, dated October 7, 2016, provides the
following in pertinent part:

       CALCULATION INCLUDES THE COST TO [MOTHER] FOR MEDICAL
       INSURANCE FOR [FATHER] AND THE CHILDREN, THE
       MORTGAGE EXPENSE ON THE MARITAL RESIDENCE, AND
       SHARED CUSTODY OF [YOUNGER CHILD].       THERE IS NO
       INDICATION FOR SPOUSAL SUPPORT OR A MORTGAGE
       DEVIATION AND INCOMES HAVE BEEN EQUALIZED. EFFECTIVE
       7/5/16, [MOTHER] IS TO PAY $365.93 PER MONTH FOR THE
       SUPPORT OF TWO CHILDREN, … PLUS $38 PER MONTH
       ORDERED ON AMOUNT ON ANY ARREARS WHICH MAY
(Footnote Continued Next Page)


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hearing officer’s recommendation does not specify which Rule was relied

upon and the trial court’s opinion does not clarify this point either.     The

specific reference from the trial court’s opinion solely provides that “[t]here

(Footnote Continued) _______________________

      HEREAFTER ACCRUE. OVERPAYMENT IS SET AT $499.34 AS OF
      10/7/16. CASE IS REFERRED TO THE FINANCIAL GROUP TO
      MOVE THE OVERPAYMENT ON THE SPA DEBT LINE TO THE CSA
      LINES. SPOUSAL SUPPORT IS SUSPENDED EFFECTIVE 7/5/16.
      [MOTHER] IS TO CONTINUE PROVIDING MEDICAL INSURANCE
      FOR [FATHER] AND THE CHILDREN.         UNREIMBU[R]SED
      MEDICAL EXPENSES WHICH EXCEED THE FIRST $250 PER
      CALENDAR YEAR PER [FATHER]/CHILD ARE TO BE PAID AS
      FOLLOWS:    55% BY [MOTHER] AND 45% BY [FATHER].
      [FATHER] SHALL TAKE [OLDER CHILD] ON HIS FEDERAL TAXES
      AND [MOTHER] SHALL TAKE [YOUNGER CHILD] ON HER
      FEDERAL TAXES AS DEPENDENCY EXEMPTIONS.

      Explanation (if needed):

          MOTHER EARNS $85,981.92 ANNUALLY WITH WOODLAND
          HILLS. SHE PAYS $97.46 SEMI-MONTH[LY] FOR MEDICAL
          INSURANCE FOR SELF/[HUSBAND]/2 CHILDREN.      SHE
          PAYS MANDATORY RETIREMENT OF $268.69 SEMI-
          MONTHLY. FATHER IS EMPLOYED BY A FAMILY BUSINESS.
          PER FATHER, HIS HOURS WERE REDUCED AND HE NOW
          EARNS $1500 BI-WEEKLY. HE FURTHER CLAIMS HE WILL
          NOT RECEIVE A BONUS THIS YEAR. THE BONUS WAS
          $20,000 AND WAS REDUCED TO $10,000 WHEN THE
          PARTIES SEPARATED. I FIND THE BONUS ISSUE TO BE
          SUSPECT AND HAVE INCLUDED $10,000 IN MY
          CALCULATION. I ALSO FIND THE REDUCTION IN HOURS
          TO BE SUSPECT AND HAVE USED $2000 BI-WEEKLY (PER
          2015   W-2    FATHER  EARNED   $60,000)  FOR   MY
          CALCULATION.    I FACTORED IN THE MORTGAGE BUT
          USED $1559. PER MOTHER, THAT WAS THE AMOUNT OF
          THE MORTGAGE WHEN SHE LEFT THE RESIDENCE.
          SYSTEM EQUALIZED THE INCOME.         I RAN BOTH
          PARTIES[’] H/2.




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is no indication that Mother was given a deviation for shared custody. To

the contrary, it indicates that the hearing officer considered that only

custody of one child was shared….” TCO at 4. This is simply not enough of

an explanation to clarify which Rule was applied in light of the fact that

Father’s calculations suggest it was subsection (c)(2) and he claims it should

be subsection (d)(2).      Accordingly, we conclude that we must vacate the

decision and remand the matter as to the amount of child support due to

allow the trial court to make adjustments to that figure, if necessary.    As

part of the remand, the court should determine which Rule properly applies

and explain the basis for its utilization of that Rule under the circumstances

that exist in this case.

      Father’s second issue centers on his claim that the court should have

awarded a mortgage deviation in the support calculation as provided for in

Pa.R.C.P. 1910.16-6(e). The trial court explained its reasons for refusing to

grant Father’s request for a mortgage deviation as follows:

      Lastly, Father argues … that the mortgage on the marital home
      should have been found to be $2,813.00, and, … that he should
      have been entitled to a mortgage deviation. The hearing officer
      indicated that she took the mortgage into consideration but used
      $1,559.99, the amount of the mortgage payment obligation
      when Mother left the marital home. Using this amount and
      putting Father at his previous full time salary plus bonus, Father
      is not entitled to a mortgage deviation pursuant to Pa.R.C.P.
      1910.16-6(e) as the monthly obligation does not meet the
      required threshold.

      Moreover, Pa.R.C.P. 1910.16-6 is not mandatory. It begins:
      “The trier of fact may allocate between the parties the additional
      expenses identified in subdivisions (a) - (e). If under the facts


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     of the case an order for basic support is not appropriate, the
     trier of fact may allocate between the parties the additional
     expenses.” (emphasis[] added)

     With regard to the mortgage on the marital home, [] Rule
     [1910.16-6(e)] states:

           (e) Mortgage Payment. The guidelines assume
           that the spouse occupying the marital residence will
           be solely responsible for the mortgage payment, real
           estate taxes, and homeowners’ insurance. Similarly,
           the court will assume that the party occupying the
           marital residence will be paying the items listed
           unless the recommendation specifically provides
           otherwise. If the obligee is living in the marital
           residence and the mortgage payment exceeds 25%
           of the obligee’s net income (including amounts of
           spousal support, alimony pendente lite and child
           support), the court may direct the obligor to assume
           up to 50% of the excess amount as part of the total
           support award....[][(Emphasis added)]

     Applying a mortgage deviation is clearly within the discretion of
     the court and dependent not just on the amount of the mortgage
     obligation but on other facts of the case. Here, [the court] found
     that Father has not done anything to try and reduce the amount
     of the mortgage, despite Mother’s offers to attempt to refinance
     with him, while at the same time voluntarily reducing his income
     by almost 50%.

     The mortgage payment spiked dramatically after Mother left the
     home. It apparently was Mother’s mistaken belief that this
     increase was due to Father’s failure to make payments. It
     appears that, instead, it was a new tax assessment that caused
     at least a portion of the increase. (The mortgage obligation has
     since decreased approximately by $600.00 per month.)

     Regardless of the cause of the increase in the monthly mortgage
     obligation on the marital residence, [the court] find[s] that
     Father is not entitled to a deviation when held to his earning
     capacity and when his failure to mitigate is considered.

TCO at 7-8 (emphasis added by trial court).



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      In support of this issue, Father sets forth various proposed calculations

of an amount for a mortgage deviation because he claims that the mortgage

payment is over 25% of his net income and meets the requirements set

forth in Rule 1910.16-6(e).      He does note that granting a mortgage

deviation is within the trial court’s discretion. However, he takes issue with

the trial court’s reasoning, claiming that refinancing of the mortgage as

suggested by Mother is irrelevant because the main purpose of the deviation

is to support the parties’ children, one of which resides in the home 100% of

the time.

      In Woskob v. Woskob, 843 A.2d 1247 (Pa. Super. 2004), this Court

reviewed a case in which the mother as obligee resided in the marital home

that had a mortgage that greatly exceeded her net monthly income.

Following separation, the father had custody of three of the parties’ four

children during various periods.    One of his arguments centered on his

custody obligation and the application of Rule 1910.16-6(e) to the mother’s

request for a mortgage enhancement. The mother countered this argument

by claiming that “it is irrelevant whether she had custody of all of the

children or a single child as long as she was an obligee in possession of the

marital home.”    Id. at 1257.     This Court found the mother’s argument

persuasive, noting that “the trial court may apply the enhancement where a

support obligee resides in the marital home and the mortgage on that

property exceeds one-quarter of the obligee’s net income.         Hence, Rule

1910.16[-6(e)]   does   not   contain   any   custody   requirements   beyond

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satisfying the status of a support obligee.”          Id. at 1257-58.   This Court

recognized that prior to the Woskob decision, no precedent existed, just the

Rule itself. Thus, this Court declined to create an exception to the Rule and

relied on the trial court’s reasoning to affirm the court’s decision granting the

mortgage enhancement. Here, we likewise rely on the trial court’s reasoning

and   affirm    its   determination     that   a   mortgage   enhancement   is   not

appropriate under the circumstances of this case.4

       Order vacated in part and affirmed in part. Case remanded for further

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2018



____________________________________________


4 In the portion of his brief entitled “Conclusion,” Father requests that the
trial court order an award to him of arrears retroactive to July 5, 2016
through July of 2017, which he calculates to total $15,737.99. This total
appears to be based on an amount of support he believes he is owed plus an
amount of a mortgage deviation minus the amount he was actually paid.
This request for arrears was not raised in Father’s Pa.R.A.P. 1925(b)
statement of errors complained of on appeal and, thus, has been waived.
See Dubose v. Quinlan, 125 A.3d 1231 (Pa. Super. 2015) (stating that
when a claim is not raised in the appellant’s statement of errors complained
of on appeal, the claim is waived).



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