Karakelian, M. v. LaVine, J. ( 2016 )

J-A21032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MEGEN KARAKELIAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JORDAN LaVINE, :
:
Appellant : No. 3470 EDA 2015
Appeal from the Order entered October 27, 2015
in the Court of Common Pleas of Delaware County,
Domestic Relations Division, No(s): PACSES 018113330
BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 28, 2016
Jordan LaVine (“Father”), pro se, appeals from the Order entered by
the trial court establishing his child support obligations in connection with his
divorce from Megen Karakelian (“Mother”).1 We affirm.
In its Opinion, the trial court set forth the relevant factual and
procedural history, which we adopt for the purpose of this appeal. See Trial
Court Opinion, 1/12/16, at 1-6.
On appeal, Father raises the following issues for our review:
1. Did the trial court err in calculating [Father’s] net income for
child support purposes at $41,027.00 per month, based on
the court’s failure to deduct: (a) [Father’s] full 2015 [f]ederal
tax liability; (b) any Medicare or Social Security taxes owed or
paid by [Father]; and (c) any alimony payments made by
[Father] to [Mother] in 2015; to derive this net income, in
contravention of Pa.R.C.P. 1910[.]16-2[?]
2. Did the trial court err in assigning [Mother] an annual earning
capacity of $10,000 (less than minimum wage), although she
1
The parties have three minor children (hereinafter “the children”).
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is an attorney with seven years of litigation experience,
previously earned $52,00[0]-$63,000 when she was last
working, has 50% custody, with the parties’ children all in full
day school, has had almost 5 years since separation to get
back in the workforce, and has made no effort to obtain
employment during that time frame?
3. Did the court below err in not holding an evidentiary hearing,
not considering or apparently reviewing the brief and exhibits
[Father] submitted in advance of the hearing and during the
October 22, 2015 hearing (including an expert report on
[Mother’s] earning capacity and [Father’s] W[-]2-which the
court stated were not provided), and not taking evidence on
other factors relevant to the determination of the correct
support amount?
4. Did the trial court err in concluding that [Father’s] new
spouse’s income justified an upwards deviation, although
[Mother] never even made that argument, there was no
evidence in the record supporting that conclusion, and the law
cited by the court on that point was not good law?
5. Did the trial court err in concluding that no adjustment was
required for shared custody in high income cases, although
[Mother] never even raised that argument, there was no
evidence in the record supporting that conclusion, and the law
cited by the court on that point was not good law?
Father’s Brief at 5-6.
When evaluating a [child] 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.
Kimock v. Jones, 47 A.3d 850, 854 (Pa. Super. 2012) (citations omitted).
Additionally, the fact-finder, having heard the witnesses, is entitled to weigh
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the evidence and assess its credibility. Baehr v. Baehr, 889 A.2d 1240,
1245 (Pa. Super. 2005).
Support orders “must be fair, non-confiscatory and attendant to the
circumstances of the parties.” Fennell v. Fennell, 753 A.2d 866, 868 (Pa.
Super. 2000) (citation omitted). “[I]n determining the financial
responsibilities of the parties to a dissolving marriage, the court looks to the
actual disposable income of the parties.” Id. (citation omitted). “[W]hen
determining income available for child support, the court must consider all
forms of income.” Berry v. Berry, 898 A.2d 1100, 1104 (Pa. Super. 2006)
(citation omitted); see also Pa.R.C.P. 1910.16-2(a).
In his first issue, Father contends that the trial court acknowledged
that, pursuant to Pa.R.C.P. 1910.16-2, alimony, Social Security taxes and
Medicare taxes should be deducted from a parent’s income in order to
determine that parent’s net income, but nevertheless failed to deduct these
items when determining Father’s net income. Father’s Brief at 22. Father
points to the trial court’s determination, as stated in its Pa.R.A.P. 1925(a)
Opinion, that Father waived this issue because he failed to specifically
request these deductions during the hearing, and asserts that this issue is
not waived because the court was required to consider all relevant evidence
when determining his earning capacity. Id. at 22, 24-25. Father also claims
that contrary to the trial court’s ruling that Father failed to formally move his
W-2 into evidence, “[t]he trial court had [Father’s] W-2 and it was
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referenced during the hearing.” Id. at 22. Father argues that the trial court
further erred by ruling that it could disregard Father’s alimony payments to
Mother because such payments had ceased as of the date of the support
hearing. Id. Father additionally challenges the trial court’s determination
that Father failed to provide the court with any meaningful calculations, and
contends that he provided the court with support calculations, performed
with software, which included the alimony, Social Security tax, Medicare tax,
and estimated federal tax deductions. Id. at 22-23. Father asserts that he
did not know that these deductions were not made by the trial court until
after the support hearing, and that he brought the error to the trial court’s
attention before the support Order was entered. Id. at 23. Father claims
that, because the trial court failed to consider these deductions, it
improperly calculated his net income. Id. at 25-26.
The trial court addressed Father’s first issue, set forth the relevant law,
and concluded that it lacks merit. See Trial Court Opinion, 1/12/16, at 9-
11. We discern no abuse of discretion by the trial court in making its
determination, which is supported by the record, and affirm on this basis as
to Father’s first issue. See id.
In his second issue, Father contends that the trial court erred in
assigning Mother’s earning capacity at $10,000 per year. Father’s Brief at
28. Father concedes that Mother was unemployed for a portion of their
marriage, but asserts that Mother has remained unemployed since their
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separation in 2011. Id. Father claims that, if Mother wishes to remain
unemployed, then Father and his current wife should not be “required to
subsidize [Mother’s] unilateral decision indefinitely.” Id. Father argues that
the trial court should not have considered Mother’s post-separation
unemployment when determining the length of time Mother has been “out of
the market” as an attorney. Id. Father contends that the trial court did not
want to consider his expert report on Mother’s earning capacity, and
“provided no justification for choosing $10,000 [per year] as [Mother’s]
earning capacity.” Id. at 29-30. Father also contends that the trial court
failed to consider Mother’s significant assets, including her investment
account and stock gains. Id. at 30-31. Father asserts that the trial court’s
assignment of Mother’s earning capacity at $10,000 per year discourages
Mother from working. Id. at 31.
Father also challenges the trial court’s consideration of Mother’s care
of the children during Father’s custodial time when determining her earning
capacity, and claims that both parties have helped out with the children
during the other parent’s custodial time. Id. Father argues that the trial
“court’s conclusion is particularly inappropriate in this case because [Father
and current wife] already employ a full time childcare giver.” Id. at 32
(emphasis in original). Father contends that “the children would be better
served by [Mother] working.” Id.
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The trial court addressed Father’s second issue and concluded that it
lacks merit. See Trial Court Opinion, 1/12/16, at 11-12. We discern no
abuse of discretion by the trial court in making its determination, which is
supported by the record, and affirm on this basis as to this issue. See id.;
see also Baehr, 889 A.2d at 1245.
In his third issue, Father contends that the trial court deviated from
the Guideline amount without supporting evidence or findings of fact.
Father’s Brief at 33. Father asserts that the matter was scheduled for an
oral argument and not for an evidentiary hearing. Id. at 34. Father claims
that the trial court “did not indicate that it had reviewed [Father’s] brief and
exhibits, was willing to hear witness testimony, or was willing to hold an
evidentiary hearing.” Id. Father argues that an evidentiary hearing should
have been held because the trial court deviated from the Guideline amount
for support. Id. Father contends that, during the support hearing, he was
not given a chance to cross-examine Mother, and that he referenced several
documents that were not acknowledged or reviewed by the trial court. Id.2
Father did not raise this issue in his court-ordered Pa.R.A.P. 1925(b)
Concise Statement. See Krebs v. United Ref. Co. of Pennsylvania, 893
A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues
2
Father seemingly argues that this Court should consider issues that he
initially raised in his Motion for Reconsideration, which the trial court denied.
Father’s Brief at 35. However, Father concedes that the trial court’s Order
denying his Motion for Reconsideration is a non-appealable Order. Id.
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that are not raised in his concise statement of errors complained of on
appeal). Therefore, it is waived.3
In his fourth issue, Father contends that the trial court erred in finding
that his current wife’s income ($165,000 per year) justified an upwards
deviation. Father’s Brief at 35-37.
Father did not raise this issue in his Concise Statement. Therefore, it
is waived. See Krebs, supra.4
In his fifth issue, Father contends that the trial court erred by
determining “that shared custody need not be considered in high income
cases.” Father’s Brief at 37-38.
Father did not raise this issue in his Concise Statement. Therefore, it
is waived. See Krebs, supra.5
Order affirmed.
3
Even if Father had not waived this issue, we would have determined that it
lacks merit. Indeed, our review of the record reveals no abuse of discretion
in the trial court’s determination, which is amply supported by the record.
See Trial Court Opinion, 1/12/16, at 1-6 (wherein the trial court provided a
thorough explanation of the admissible and inadmissible evidence presented
by the parties, detailed the evidence it considered in making its
determinations, and listed its findings of fact).
4
Even if Father had not waived this issue, we would have determined that it
lacks merit for the reasons expressed by the trial court. See Trial Court
Opinion, 1/12/16, at 11.
5
Even if Father had not waived this issue, we would have determined that it
lacks merit for the reasons expressed by the trial court. See Trial Court
Opinion, 1/12/16, at 11; see also Pa.R.C.P. 1910.16-4(c)(2) (providing that
the trier of fact may enter a support order against either party based upon
the evidence presented).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2016
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Circulated 09/07/2016 12:49 PM
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IN THE COURT OF COMMON PLEAS OF DELA WAiiE COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
MEGEN KARAKELIAN
I
Del.Co.C.C.P.No.i 2012-001478
Plaintiff/ Appellee,
PACSES No.: 0181113330
Va. I
Superior Court Nol.: 3470 EDA 2015
JORDAN LA VINE I
IN SUPPORT II
Defendant/ Appellant.
Jordan La Vine, Esquire, Self-Represented
385 Yorkshire Road; Bryn Mawr; PA 19010 ...... : ....
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.: ~.:} -·(}
0
-:..,.
Megen Karakelian, Esquire, Self-Represented."
-··l
216 Trianon Lane; Villanova, PA 19085
.;
OPINION N
i...o
CARTISANO, J. DATE: January 12, 2016
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Appellant Jordan Lavine (hereafter "Father") appeals from the October 27, 2015 order
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entered in the Delaware County Court of Common Pleas:\vhich requires Father to pay child
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support to Megen Karakelian (hereafter "Mother") in the amount of $4,~00.00 monthly for the
support and maintenance of the parties' three minor children. I
By way of background, the parties were married on June 30, 20©1 in Wilmington,
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Delaware and had three children during the course of the ··~arriage, the youngest of whom is
seven years old. On or about June 21, 2012, following Father's filing Jr a Complaint in
Divorce, Mother filed a Complaint for Support with Domestic RelatioJ seeking spousal and
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child support. The support matter, as well as various discovery issues, t7as before multiple
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support masters and judges and various modifications to the support orders were made during the
history of this case. On or about April 7, 2014, the parties entered into! Stipulation for Agreed
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Order of Support whereby the parties agreed,
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in pertinent, that Father shall
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pay to Mother child
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support in the amount of $4,300.00 per month and that the child support provision shall not be
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modifiable until December 31, 2014 and the parties further agreed that !Father's spousal support
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· shall terminate on August 31, 2015. On or about April 10, 2014, the parties' stipulation was
approved as an Order of Court. I
On or about March 3, 2015, as permitted by the parties' stipulahon, Father filed a
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Petition for Modification of Support Order, seeking a reduction in his child support obligation on
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the following basis: (1) Because his alimony payments to Wife were scheduled to cease per the
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terms of the Stipulation, he could no longer take the alimony payments las a deduction on his tax
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returns, increasing his tax liability and decreasing his net income, and Cb! Mother should be
imputed an income.
On or about April 8, 2015, the matter was listed before Master ~ane McNerney and based
on the oral motions of both parties during th,~ course
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of the hearing, the !support master ordered
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the parties to exchange certain financial information and relisted the matter
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for June 1, 2015.
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The support master's directives were signed as an Order of Court by th~ Honorable William C.
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Mackrides on April 9, 2015. Curiously, Father appealed the April 9, 20!15 order, which granted
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his discovery request before the support master could hear substantive evidence on Father's
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entitlement to a reduction in child support. On or about June 2, 2015, F~ther filed a "Brief in
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Support of Petition to Modify," the contents of which complains inappropriately, in part, of
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alleged contempt issues against Mother. On or about June 8, 2015, Fatlier's appeal of the April
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9, 2015 Order was remanded back to the support master for purposes of[a substantive hearing .
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On or about July 9, 2015, after a full and fair hearing before the ~upport master, the
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master entered a recommendation setting Father's base support at $4,300.00 per month with
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arrears assessed at the standard ten percent. The master's recommendations were signed as an
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Order of Court on July 10, 2015. On or about July 21, 2015, Father appealed the July 10, 2015
Order and a hearing de nova was scheduled before the Honorable Linda A. Cartisano for October
22,2015.
During the course of the hearing, the parties' stipulated that Father's gross annual income
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was $706,000.00 for purposes of determining child support. (N.T. I 0/22/2015, at p. 15). Father
also testified that his alimony ended in August 2015 and that including his new wife's income,
the annual gross household amount is $827,000.00. (N.T. 10/22/2015, at p. 17). Father
presented his federal income truces for the year 2014, and the Trial Court was permitted by the
parties to utilize Father's federal income tax returns in arriving at Father's net income. In
calculating Father's net income, the court took Father's gross income minus the true-implications
found directly in Father's federal income true return. (N.T. 10/22/2015, at p. 21). The trial court
found that based upon his tax return and Father's testimony with respect to the earnings of his
new wife, that Father "has 83% of the marital income so his tax would be $164,242, and that's
federal" (N.T. 10/22/2015, at p. 22). The trial court likewise calculated Father's share of the
state tax and local true, finding that Father's net monthly income was approximately $43,000.00
(N.T. 10/22/2015, at p. 22).1 The trial court also took into consideration every deduction which
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Father presented to the court to arrive at his'';~t income, including Philadelphia wage true, health
insurance, and the 50/50 custody of the children. (N.T. 10/22/2015, at p. 21-22). Importantly, at
no point did Father request the trial court to deduct Social Security withholdings or Medicare
withholdings or alimony payments from the amount the parties' stipulated to use as the gross
number nor is it the trial court's responsibility"topresent Appellant's case for him. Because the
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1
The Court: "Well, I took your 706. I took -you are 83 percent of the joint income so I took your federal tax. You
would then -you paid 197,000. 83 percent of that is 164,242. I then took 83 percent of the state tax you paid,
which was I think 26,000.
3
number the parties agreed to utilize for Father.'s gross annual income, $706,000.00, differed from
what was reflected in the tax returns, it is clear that the parties' had already made some
adjustments on their own. The trial court therefore, utilized information from Father's 2014
federal tax returns and stated on record how the calculations were being performed, leaving it up
the parties' to request deductions which were not taken into consideration in their own arrival at
Father's stipulated annual gross income. Furthermore, as Father never expressly make this
request during the course of the hearing, the trial court utilized the "total tax" line from Father's
2014 joint tax return, which the court was permitted to utilize by the parties at the time of trial.
Furthermore, the trial court learned during the course of the hearing that Mother had
taken steps to activate her law license, a necessary precursor in securing meaningful employment
within her field. Indeed, Mother testified that she has been "actively regaining the CLE credits
that I [Mother] need in order to reactivate the license." (N.T. 10/22/2015, at p.5). Mother also
produced proof that her prior application to reactivate her law license was rejected, but that she
has since complied with the requirements and "is now in a position to reapply to have her license
reactivated." (N.T. 10/22/2015, at p. 6). The trial court considered the length of time Mother has
been out of the market, the economic climate for unlicensed attorneys in this area, and Mother's
testimony that she aids Father in childcare during his custodial time when requested, in deciding
what income to impute Mother. (N.T. 10/22/2015, at p. 24, 40). Mother also established that she
is deriving some income in the management of a rental property, and the trial court utilized the
income from Mother's 2014 tax return in addition to imputing some income.
Furthermore, the trial court found that' Mother produced evidence indicating that she was
being proactive about reactivating her law license. Additionally, although Father contends that
Mother's earning capacity should have been imputed at $50,000.00, he failed to present any
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testimony from a vocational expert or other substantive evidence to support his contention.'
Indeed, the only thing resembling evidence was Father's hearsay statements concerning certain
postings he had seen with respect to paralegal positions in Center City Philadelphia that allegedly
pay $50,000.00 - $70,000.00. Father, however, failed to produce any of the job postings he
referenced with respect to this salary range nor the qualifications required. Indeed, not only is
the law constantly evolving but even legal research skills and administrative aspects of the law
have greatly changed with the advent of electronic legal resources and filing systems. Father
produced no evidence that Mother possessed the qualifications for these alleged positions,
although a vocational expert may have given an expert opinion with respect to Mother's
qualifications and the general salary in her field.
The trial court likewise considered Mother's 2014 federal tax returns which showed that
Mother had approximately $16,000.00 in inco~e from dividends and rental on her returns. The
trial court added back in the depreciation less the taxes Mother would have paid on the
depreciation had it been included in her income. (10/22/2015, at p. 13). The trial court also
imputed income to Mother, although not as much income as Father would have liked.
On October 27, 2015, the trial court'en.tered an Order requiring Father to pay $4,300 per
month for child support, 92% of the agreed upon costs for daycare and extra-curricular activities,
and payment of the children's health insurance. The trial court also entered the following
Findings of Fact supporting the content of the October 27, 2015 Order:
1. Plaintiffs income is calculated at $3,500 net per month. This amount is calculated
from her 2014 Federal Income Tax Return which lists dividend income of $16,000.00
2
The record reflects that Father had filed an "Emergency Motion to Compel Vocational Interview Before Support
Hearing Date of April 22, 2014" which by Order dated March 20, 2014 compelled Mother to attend a vocational
interview scheduled for March 28, 2014. If Father proceeded with the retention ofa vocational expert, he failed to
present any evidence, including findings with respectto an earning capacity for Mother.
5
and depreciation on a rental property of $20,000.00. The Court deducted 11 % for
taxes. In addition, the Court imputed approximately $10,000.00 of income to
Plaintiff on a yearly basis.
2. Defendant's income is calculated at $41,027.00 based on his 2014 Federal Income
Tax Return.
3. Defendant pays $700.00 per month for health insurance for the parties' minor
children. Plaintiffs share would be $560.00.
4. The Court has deviated from the Guidelines in the amount of $139. 00 per month
because Defendant's 2014 Tax Return reflects a deduction for alimony paid to
Plaintiff which is substantially reduced for 2015 resulting in a larger tax liability for
Defendant.
5. Plaintiff and Defendant share custody of the children on an equal basis.
6. The Court finds that Plaintiff is attempting and should shortly complete the
requirements to reinstate her law license to active status.
On or about November 4, 2015, Father filed a Motion for Reconsideration which now
requested additional deductions never requested at the time of trial. For the first time, Father
requested in his Motion for Reconsideration that the trial court consider new arguments with
respect to calculation of Father's net income. The trial court denied the Motion for
Reconsideration and the October 22, 2015 Order was timely appealed. On or about November
16, 2015, the trial court issued a 1925(b) Order and Father timely filed a Statement of Matters
Complained of on Appeal.
On appeal, Father makes the following complaints:
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1. The Court incorrectly concluded that based on Mr. La Vine's 2014 tax return and W2,
that Mr. LaVine's net income was $41,027/month, inflating his net income by over
$6,000.00 per month.
2. The Court did not deduct any Social Security taxes that Mr. LaVine paid in 2014 and
will pay in 2015 to arrive at his net income for support purposes. Pa.R.C.P. 1910:16-
2 requires that these taxes be deducted (stating that they "shall" be deducted) and Ms.
Karakelian has not even disputed that the taxes should be deducted.
3. The Court did not deduct any Medicare taxes that Mr. LaVine paid in 2014 and will
pay in 2015 to arrive at his net income for support purposes. Pa.R.C.P. 1910:16-2
requires that they be deducted and Ms. Karakelian has not even disputed that they
should be deducted.
4. The Court did not deduct any alimony payments that Mr. LaVine paid in 2014 and/or
2015 to arrive at his net income for support. Mr. LaVine paid Ms. Karakelian
$116,00 in additional alimony in 2014 and $35,000 in additional alimony in 2015.
Pa.R.C.P. 1910:16-2 requires that alimony paid to Ms. Karakelian be deducted to
arrive at net income.
5. The Court compounded the problem of not deducting any alimony paid to Ms.
Karakelian by deducting only the amount that Mr. LaVine actually paid in Federal
income taxes in 2014 to arrive at his net income. These 2014 Federal income taxes
were of course lower than they will be in 2015 and later years, because of the
$116,000 alimony deduction that significantly decreased Mr. Lavine's Federal
income taxes for 2014. The Court was attempting to calculate Mr. LaVine's 2015
support obligation. 's-
6. The Court assigned Ms. Karakelian an earning capacity of $10,000 per year (which is
less than minimum wage), although Ms. Karakelian is an attorney with seven (7)
years oflitigation experience, previously earned $53,000-$63,000 per year when she
was working, and had had almost 5 years since separation to get back in the
workforce. She does not work and does not have to work because of Mr. LaVine's
alimony and child support payments (which have been higher than what is required
and total over $680,000) and thesignificant liquid assets she received in the divorce
settlement (her investment account has apparently appreciated to over $1 million
since the parties' divorce), but she is certainly capable of earning more than
$10,000/year. This holding is directly contrary to the Superior Court's holding in
D.H v. R.H, 2006 Pa. Super. 125, 900 A.2d 922 (2006)(Reversible error to assign
earning capacity of $15,837 to mother); Yerkes v. Yerkes, 573 Pa. 294, 297-298, 824
A.2d 1169, 1171 (2003) ( the duty of child support, as every other duty encompassed
in the role of parenthood, is the equal responsibility of both mother and father.").
Over the past 4 Yz years, despite hearing after hearing, the Court has essentially given
Ms. Karakelian a "free pass" on making no effort to find employment, which is
contrary to both the law and its treatment of other parents. The parties have 50/50
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custody and their children are all in full day school, so Ms. Karakelian has sufficient
time to attempt to find employment.
7. Mr. LaVine filed his Petition to Modify his support obligation on March 5, 2015, but
despite two masters' conferences. and one judicial hearing between March and
October, the Court did not appear to actually perform the support calculations until
October 22, 2015, when the Court miscalculated the correct support amount, as set
forth above. The correct child support amount is less than $3,850/month, even if Ms.
Karakelian is assigned no earning capacity.
8. On October 22, 2015, the Court also erred in not considering the brief that Mr.
LaVine filed in advance of the hearing and the support calculations submitted by Mr.
LaVine (done with support software), which included the deductions identified above.
The Court erred in not conducting an evidentiary hearing. Mr. LaVine also submitted
a letter to the Court right after the hearing regarding the calculation errors, before a
final order was entered, which is attached hereto as Exhibit A. The Court did not
respond to the letter and refused to grant Mr. Lavine's request for a phone conference
or for a further hearing to correct the errors, before entering the final October 27,
2015 Order.
9. Finally, the Court erred in denying Mr. La'Vine's Motion for Reconsideration without
a hearing on November 16, 2015. For the reasons set forth in the Motion for
Reconsideration, the decision should be reversed and the order modified and the child
support amount reduced, retroactive to at least March 3, 2015, which is the date on
which Mr. LaVine filed his Petition to Modify.
DISCUSSION
On appeal, Appellant only makes four substantive..· arguments:
.
(1) the trial court should
have deducted his Social Security withholdings in arriving at Appellant's net income, (2) the trial
court should have deducted Appellant's Medicare tax withholdings in arriving at his net income,
(3) the trial court should have deducted the alimony payments Appellant made in arriving at his
net income and consider the increased tax implications when Appellant was no longer permitted
to deduct alimony payments, and (4) the trial court should have imputed Appellee a greater
earning capacity. The remainder of Appellant's complaints appear to be ramblings about errors
which allegedly occurred at the mater's level and other unappealable issues such as the court's
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refusal to grant a reconsideration hearing or hold a telephone conference after the record was
closed.
A. The Trial Court was Justified.inAssessing Appellant's Net Monthly Income for
Purposes of Determining Child Support at $41,027.00.
Generally, the Superior Court will not interfere with the broad discretion afforded the
trial court absent an abuse of the discretion or insufficient evidence to sustain the child support
order. Morgan v. Morgan, 99 A.3d 554 (2014). Additionally, when evaluating a child support
order, the Superior Court may only reverse the trial court's determination where the order cannot
be sustained on any valid ground. W.A.M. v. S.P.C., 95 A.3d 349 (2014) (The Superior Court
will not interfere with the broad discretion afforded the trial court absent an abuse of discretion
or insufficient evidence to sustain the support order).
Finally, it is well established that the appellate court will not ordinarily reverse the court
below for not doing what it is not asked to do. Whistler Sportswear, Inc. v. Rullo, 289 Pa.
Super. 230, 433 A.2d 40 (1981). Pennsylvania Rule of Appellate Procedure 302(a)
unequivocally states as a general rule that issues not raised in the lower court are waived and
cannot be raised for the first time on appeal. The rationale for the rule was clearly expounded by
the Pennsylvania Supreme Court in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322
A.2d 114 (1974) where the Court reasoned: "Appellate court consideration of issues not raised
in the trial court results in the trial becoming merely a dress rehearsal."
.l.,"
Furthermore, the Court
continued, "This process removes the professional necessity for the trial counsel to be prepared
to fully litigate the case fully and create a record adequate for appellate review." Id. It is well
settled that "a failure to argue and to cite any authority supporting any argument constitutes a
waiver of issues on appeal." Jones v. Jones, 878 A.2d 86, 90 (Pa. Super. 2005).
9
In the instant matter, not only did Appellant, an attorney by trade, fail to request the trial
court during the course of the hearing to deduct Social Se~urity and Medicare withholdings, he
likewise failed to formally move into evidence his W-2 information which would contain said
information and as such, this was not made part of the record. Appellant also failed to provide
direct testimony with respect to what those withholdings were. The trial court, although
providing Appellant abundant opportunity to present his case and make requests with respect to
items he wished deducted from his gross income to arrive at his net income, failed to properly do
so. Appellant, although self-represented, is an attorney by trade and likewise a review of
Appellant's income makes it clear that his decision to be self-represented was not driven by
financial necessity. The trial court, therefore, holds Appe!lant to the same standard as an
attorney in spite of his self-representation and expects Appellant to present evidence to the trial
court and properly enter exhibits into the record in accordance with the Pennsylvania Rules of
Civil Procedure, which Appellant failed to do.
Appellant next claims that the trial court should have
·::·:
deducted the alimony he had paid to
Appellee in 2014 and a portion of 2015 to arrive at his net income. Importantly, at the time of
trial Appellant testified that his alimony obligation to Appellee had ceased. Additionally,
Appellant's petition for modification was filed in 2015; therefore the trial court was not
empowered to modify support prior to the filing date. Next,
.t.
Appellant requested the trial court to
speculate what his tax consequences would be for 2015 and 2016 without the inclusion of an
alimony deduction, failing to provide the trial court with any meaningful calculations,
arguments, or evidentiary support. Without this pertinent information, Appellant's request was
tantamount to a request for the trial court to speculate about his tax liability going forward.
Furthermore, the trial court took into consideration Appellant's argument concerning alimony
10
payments to Appellee and the increased tax consequences to the extent possible and awarded a
slight deviation to Appellant on such basis.
Furthermore, there is sufficient evidence contained in the record to support the trial
court's order. Other household income can justify a deviation from the support guideline
amount. Pa. R.C.P. 1910.16-4(b)(3), Schenk v. Schenk, 880 A.2d 633 (Pa. Super. 2005),
McCarty v. Smith, 655 A.2d 563 (Pa. Super. 1995). While the Pennsylvania Superior Court has
found that a current spouse of a party has no obligation to support his or her stepchildren, the
spouse's contribution to the family expenses is relevant because that contribution makes more of
the parent's income available for support. Pa.R.C.P. 1910.16-5(n), note citing, Com. ex. Rel.
Travitzky v. Travitzky, 326 A.2d 883 (Pa. Super. 1974); Roberts v. Bockin, 461 A.2d 630 (Pa.
Super. 1983. Appellant testified during the course of the hearing that his current spouse is also
.~· ..
an attorney with an approximate annual gross income of $165,000.00. (N.T. 10/22/2015, at p.
18). Additionally, the trial court is not required to adjust child support in high income cases to
account for shared physical custody by the parents. Baehr v. Baehr, 889 A.2d 1250 (2005).
Therefore, notwithstanding Appellant's failure to properly request deductions or introduce into
evidence testimony or documents with respect to his Social Security and Medicare withholdings,
the evidence presented at trial nonetheless supports the trial court's order on other grounds in the
record.
B. The Trial Court Was Justified in Imputing Appellee $10,000.00 and Including
Her Actual Earnings
Although the trial court imputed income to Appellee of $10,000.00, in addition to
including her actual 2014 earnings and indeed adding back in certain deductions, Appellant's
main complaint is that Appellant was not imputed enough income. In support of his contention,
11
Appellant cites D.H. v. R.H., 900 A.2d 922 (2006), a Superior Court case which is highly
distinguishable from the facts presented in the case at issue. Most notably, the Superior Court in
D.H. v. R.H. found that the trial court's intentional disregard of Mother's most current tax
returns and decision to use the prior year's earnings because "it would be inappropriate to assign
an earning capacity for [mother's] first year back" constituted error. Id.
In the instant case, the trial court not only utilized Appellee's actual current earnings, but
added deductions back in and assigned an earning capacity. Furthermore, Appellant presented
no testimony or evidence with respect to establishing an earning capacity of $50,000.00, an
amount which he contends should have been imputed to Appellee. Indeed, at most, Appellant
makes generalized statements about Appellee's past earnings when she possessed an active law
license. Appellee produced evidence during the course of the hearing that she had undertaken
. ~--~· ·-_.~-
steps to reactivate her law license and resume practice. No testimony or evidence was presented
as to what Appellee could make in the current economic market with no active law license.
Indeed, although the record reflects that Appellee at one point had retained a vocational expert,
no expert opinion with respect to earning capacity was presented to the trial court. Furthermore,
Appellee testified that while she was awaiting approval of her application to reactivate her law
license, that she has made herself available to Appellant for childcare. The trial court, therefore,
in its reasonable discretion imputed Appellant an additional $10,000.00 income.
12
CONCLUSION
Wherefore, for the reasons elicited above the trial court entered an Order dated October
27, 2015, which requires Appellant to pay child support to Appellee in the amount of $4,300.00
monthly for the support and maintenance of the parties' three minor children.
BY THE COURT:
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13