Carter, T. v. Carter, T. ( 2017 )

J-A14004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TRACEY C. CARTER, IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TROY L. CARTER,
Appellant No. 3817 EDA 2016
Appeal from the Order Entered November 23, 2016
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): 009807300 PACSES No. 363004162
BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 30, 2017
Appellant Troy L. Carter (“Father”) appeals from the order denying his
motion to terminate an existing support order for his son Troy L. Carter, II
(“Troy II”), born in January of 1994. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
On May 26, 2015, Troy L. Carter (“Father”) petitioned to
modify an existing support order for his and Tracey L. Carter’s
(“Mother,” Father’s former wife) natural child, Troy L. Carter II
(“Troy II”). Father sought to terminate the support order, alleging
that Troy II, who is now 22 years of age, was no longer a
dependent child. After a hearing before a support master,1 the
master recommended that the petition to modify be denied and
that Father continue to pay support for Troy II based upon Troy
II’s inability to engage in employment to support himself. Father
filed exceptions to the master’s report and proposed order, and a
hearing was held before the [c]ourt on November 23, 2016. After
counsel for each party presented argument and upon independent
review of the evidence of record, the [c]ourt determined that Troy
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II was an adult dependent child and was entitled to receive
continued financial support from Father. Father was ordered to
pay the sum of $1,986.57 per month, effective May 26, 2015, plus
$100 monthly to be paid on the amount retroactively, for a total
$2,086.57 monthly obligation.2
1 At the master’s hearing, each of the parties testified.
In addition, the master placed on the record the
following items of documentary evidence: 1) Father’s
pay stubs; 2) Mother’s pay stubs; 3) Mother’s 2014
and 2015 W-2 Wage and Tax Statements; 4) Troy II’s
Social Security Administration Supplemental Security
Income statement, dated Nov. 30, 2014, for $733 a
month; 5) Psychological Assessment of Troy ll by Joel
H. Fish, Ph.D., dated Dec. 28, 2012: 6) Psycho
Educational Re-Evaluation Report of Troy II by
Barbara C. Gelman, Psychologist for the School
District of Philadelphia, dated March 30, 2015; and 7)
Child/Adolescent Psychiatric Evaluation by Abayomi
Ige, M.D., for Warren E. Smith Health Centers, dated
Aug. 17, 2015.
2Father’s monthly net income is $20,558.05; Mother’s
monthly net income is $6,191.22. See Support
Guideline Calculation, April, 7, 2016.
Father then filed the instant appeal. In his Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal,
Father avers that 1) there was not sufficient evidence to establish
that Troy II is physically and mentally unable to engage in
profitable employment and that employment was not available at
a supporting wage; 2) the Court abused its discretion “when it
adopted” the Social Security Administration’s findings regarding
Troy II’s ability to work; and 3) the Court erred and abused its
discretion in not adjusting child support downward based upon
Troy II’s receipt of $733 per month in Supplemental Security
Income (“SSI”) benefits.
Trial Court Opinion, 1/6/17, at 1-2.
Appellant presents the following issues for our review on appeal:
1. Did the trial [c]ourt err, misapply the law, abuse its discretion
and/or lack sufficient evidence in finding that [Troy II] is so
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physically and mentally incapacitated that he is unable to
engage in profitable employment?
2. Did the trial [c]ourt err, misapply the law, abuse its discretion
and/or lack sufficient evidence in finding that employment for
[Troy II] is not available at a supporting wage?
3. Did the trial [c]ourt err, misapply the law, abuse its discretion
and/or lack sufficient evidence in finding that [Troy II’s] mental
and physical condition make it impossible for him to be
employed and that [Troy II] met his burden of proof to
overcome the legal presumption that child support terminates
at emancipation?
4. Did the trial court err, misapply the law, and abuse its
discretion regarding its failure to adjust child support
downward due to . . . [Troy II’s] receipt of $733.00 per month
from Social Security Supplemental Income (SSI)?
Appellant’s Brief at 5-6.
The well-settled standard of review in a child support case provides as
follows:
When evaluating a support order, this Court may only
reverse the trial court’s determination where the order cannot be
sustained on any valid ground. We will not interfere with the
broad discretion afforded the trial court absent an abuse of the
discretion or insufficient evidence to sustain the support order. An
abuse of discretion is not merely an error of judgment; if, in
reaching a conclusion, the court overrides or misapplies the law,
or the judgment exercised is shown by the record to be either
manifestly unreasonable or the product of partiality, prejudice,
bias or ill will, discretion has been abused. In addition, we note
that the duty to support one’s child is absolute, and the purpose
of child support is to promote the child’s best interests.
Kimock v. Jones, 47 A.3d 850, 854 (Pa. Super. 2012). Furthermore, this
Court:
must accept findings of the trial court that are supported by
competent evidence of record, as our role does not include making
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independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, this Court must
defer to the trial judge who presided over the proceedings and
thus viewed the witnesses first hand.
When the trial court sits as fact finder, the weight to be
assigned the testimony of the witnesses is within its exclusive
province, as are credibility determinations, and the court is free
to choose to believe all, part, or none of the evidence presented.
This Court is not free to usurp the trial court’s duty as the finder
of fact.
Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009) (internal citations
and quotation marks omitted).
In his first issue, Father argues that Troy II and Mother have failed to
establish that Troy II is disabled to the extent that he is unable to engage in
in profitable employment. Appellant’s Brief at 11. Father asserts that despite
Troy II’s “mild intellectual disability”, he may still have the capacity to become
employed. Id. at 14. In support of his claim, Father relies on the December
28, 2012 Psychological Assessment of Troy II conducted by Joel H. Fish, Ph.D.
Id. at 11-12.
Moreover, Father maintains that the report of psychologist Doctor
Abayomi Ige, which indicates that Troy II needs ongoing support, is
insufficient to establish that it is “impossible for Troy II to be employed in any
job and that there are no jobs in the market suitable for him.” Father’s Brief
at 14-15. Father also contends that Doctor Ige’s report stating that Troy II
“would definitely need assistance both functionally, employment wise,
financially, and socially [for] the rest of his life” and that “financial support will
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also help in terms of his recovery and rehabilitation” does not mean that
“Father should have a continuing legal obligation to support Troy II at
‘Guidelines Support’ level.” Id. at 15. Further, Father relies primarily on the
case of Style v. Shaub, 955 A.2d 403, 409 (Pa. Super. 2008) in support of
his claim, asserting that Troy II’s disability is less severe than the disabled
individual in Style and therefore establishes Father’s position. Id. at 23.
Father argues that the trial court had insufficient evidence to support its
conclusions, abused its discretion, and arrived at a manifestly unreasonable
conclusion given the record. Id. at 27.
As this Court has explained in addressing support issues:
[W]e recognize that as a general rule, the duty to support a child
ends when the child turns eighteen or graduates from high school.
Hanson v. Hanson, 425 Pa.Super. 508, 625 A.2d 1212 (1993).
However, pursuant to 23 Pa.C.S. § 4321(3), a parent may be
required to support a child who, upon reaching the age of
majority, has a mental or physical condition that prevents the
child from being self-supporting. Id. “To determine if an order
of support is appropriate, the test is whether the child is physically
and mentally able to engage in profitable employment and
whether employment is available to that child at a supporting
wage.” Id. at 1214.
Kotzbauer v. Kotzbauer, 937 A.2d 487, 489–490 (Pa. Super. 2007).
Moreover, we have clarified that whether someone is “employable” does
not resolve the issue of whether that individual is entitled to continuing
support from parents. In Com. ex rel. Cann v. Cann, 418 A.2d 403, 405-
406 (Pa. Super. 1980), the adult child, who had a learning disability, was
unable to earn a supporting wage because of her mental capacity, even though
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she worked forty hours per week at a cleaning job and babysitting. Id. at
404-406. This was sufficient to require her father to continue paying support
when it was determined that her living expenses exceeded her income. Id.
at 405-406. Thus, an adult child who is mentally or physically disabled is
entitled to support even if he or she is employable but is incapable of self-
support. See id. at 405 (the party seeking to vacate a support order in this
scenario “must demonstrate not just that the child is capable of earning some
income, but that the child is able to earn a sufficient living to be entirely self-
supporting in order to justify vacating a support order”); see also Kotzbauer,
937 A.2d at 490-494 (despite working sixteen to twenty hours a week, adult
child was unable to support herself due to her disability, and her father was
responsible for providing continuing support); Hanson v. Hanson, 625 A.2d
1212 (Pa. Super. 1993) (where adult child working part-time jobs was unable
to support herself due to her disability, father was responsible for providing
continuing support).
Turning to the facts of the case before us, the Psychiatric Evaluation
performed by Doctor Ige at Warren E. Smith Health Centers (“WES”) reflects
the following, in relevant part, regarding Troy II:
The question being asked by the court is to determine his level of
independence and if there is any need for continuing child support
payment for him to establish a relatively stable life. Because of
his diagnosis of Autism and Mild Intellectual Disability, he is in
need of constant support, supervision and assistance. Troy is not
able to establish full independence in spite of his [aging] out of
the educational system. He would definitely need assistance both
functionally, employment wise, financially, and socially for the rest
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of his life. Financial support will also help in terms of his recovery
and rehabilitation. In my view, child support payment for his
upkeep and to supplement his social security disability income is
still needed as Troy cannot establish full independence.
WES Psychiatric Evaluation conducted by Abayomi Ige, M.D., 8/17/15, at 4.
Additionally, the Re-Evaluation report of Troy II, conducted through his
school district, reflects that Troy II was placed in the special education
program there and received “life skills support programming and speech
therapy.” Psycho Education Re-Evaluation Report of Troy II by Barbara C.
Gelman, Psychologist for the School District of Philadelphia, 3/30/15, at 1-2.
Troy II’s program included “coursework in English, functional academics,
physical education, vocational and interpersonal skills and personal
maintenance.” Id. at 1. Troy II has diagnoses of autism and intellectual
disability. Id. Troy reads at a third or fourth grade level and he has difficulty
with double and triple digit addition and subtraction, and multiplication. Id.
Additionally, Troy II was deemed disabled by the Social Security
Administration and is receiving Social Security benefits.1 Troy II’s Social
Security Administration Supplemental Security Income statement, dated
November 30, 2014.
1
Supplemental Security Income (“SSI”) provides disabled individuals with
means sufficient to cover only basic necessities needed to maintain their
health and support. Ricco v. Novitski, 874 A.2d 75, 83 (Pa. Super. 2005).
Other sources of funding are necessary to provide services and goods, not
covered by basic public or private insurance, which parents would need to
provide to enhance the disabled child’s life. Id.-7-
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Accordingly, there was sufficient evidence upon which to sustain the trial
court’s determination that Father is required to continue to pay support for his
adult child who is incapable of self-support. Indeed, the trial judge made the
following determination:
Based upon the credible evidence, Troy II sustained his
burden of proof in overcoming the presumption of non-entitlement
to continued support because he is physically and mentally unable
to engage in profitable employment. He is an individual who has
a pervasive developmental disorder, who is of limited intellectual
ability, with a history of congenital malformations, hypoplastic
lungs, scoliosis, and hip dysplasia. He functions at a third or
fourth grade reading level and has only the most rudimentary
arithmetic skills. He does not know that eight quarters constitutes
a sufficient amount of money to make a $1.40 purchase. He has
difficulty telling time on an analog clock. He does not write clearly
and spells poorly. He is unable to travel on public transit alone
and is reliant on paratransit. As stated by Dr. Ige, Troy II needs
constant support, supervision and assistance.7
7 This opinion of a medical expert is itself evidence
upon which the Court may rely. See Commonwealth
v. Meals, 912 A.2d 213, 223-24 (Pa.2006).
***
The award by the Social Security Administration of SSI
benefits to Troy II is persuasive evidence that he is not physically
and mentally able to engage in profitable employment. The
[c]ourt did not “adopt” the findings of the Social Security
Administration, but weighed this evidence in conjunction with the
other evidence during the course of its independent review.
Trial Court Opinion, 1/6/17, at 8-9.
The evidence of record supports the conclusion that Troy II is incapable
of self-support, and the trial court’s determination can be sustained on
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multiple grounds.2 Therefore, this Court cannot reverse the trial court’s order.
Kimock.
Additionally, the trial court’s credibility determinations are supported by
the record. As noted, with regard to issues of credibility and weight of the
evidence, this Court must defer to the trial judge who presided over the
proceedings and thus viewed the witnesses first hand. Mackay, 984 A.2d at
533. This Court may not usurp the credibility determinations made by the
trial court. Id.Furthermore, in light of Cann, Kotzbauer and Hanson, Father’s
argument that Troy II is capable of some level of employment is irrelevant.
Even if Troy II were to obtain some level of employment, the evidence
supports the conclusion that he would be unable to self-support. Thus,
pursuant to Cann, Kotzbauer, and Hanson, Mother and Troy II carried their
2
Despite Father’s discussion of the report prepared by Dr. Fish in support of
his claim, the trial court indicated that it did not rely on that report in making
its determinations. As the trial court explained:
The [c]ourt did not afford much weight to the Psychological
Assessment of Troy II by Joel H. Fish, Ph.D., dated Dec. 28, 2012,
in its review of the evidence due to the “age of the information”
provided by this report. In this regard, the [c]ourt agreed with
one of Father’s exceptions that, “[t]he Master erred in relying
upon plaintiff’s P-5 Psychological Assessment by Dr. Joel Fish for
[the] reason that it was done on 12/28/2012, over three years
prior to the Master’s Hearing and was thus outdated and
unreliable.”
Trial Court Opinion, 1/6/17, at 5 n.3 (internal citations omitted).
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burden of rebutting the presumption of non-support and that Father is
required to continue to provide support for Troy II.
We further note that the case principally relied upon by Father, Style,
955 A.2d 403, is not factually similar to the current case and therefore, is not
persuasive authority in support of Father’s claim. Despite Father’s assertion
to the contrary, the facts in Style reflect that the adult child in that case,
Dustin, was less impaired than Troy II. Specifically, Dustin had diagnoses of
Attention Deficit Hyperactivity Disorder (“ADHD”), Oppositional Defiant
Disorder (“ODD”), dysthymia (also referred to as chronic depression), and
Atypical Autism. Id. at 406. Dustin did not have an intellectual disability.
Additionally, Dustin read at an eighth grade level and could do mathematics
at a ninth grade level. Id. at 406. Indeed, there was no evidence submitted
in that case that Dustin could not engage in profitable employment. Id. at
411. Furthermore, in Style there was no determination of disability by the
Social Security Administration. Thus, Father’s reliance upon Style is
misguided. Accordingly, for the reasons stated, Father’s first claim fails.
In his second issue, Father asserts that Troy II and Mother have not
overcome their burden of proof that employment is not available to Troy II at
a supporting wage. Father’s Brief at 28. Father maintains that if we reverse
the trial court’s decision regarding the first of the two-part test under Style,
then we must consider whether Mother and Troy II have met their burden of
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proving that employment is not available to Troy II at a supporting wage.
Father’s Brief at 28.
As noted, to rebut the presumption that a parent has no obligation to
support an adult child, “the test is whether the child is physically and mentally
able to engage in profitable employment and whether employment is available
to that child at a supporting wage.” Style, 955 A.2d at 409. Thus, this
standard consists of a two-step test. Id. at 409-411.
The trial court found that “because Troy II showed that he is physically
and mentally unable to engage in profitable employment, there was no need
for the [c]ourt to determine the availability of any such employment to him.”
Trial Court Opinion 1/6/17, at 5 n.4. We agree. For reasons set forth above,
the evidence of record supports the conclusion that Troy II is incapable of
engaging in profitable employment. Thus, we need not determine whether
employment is available to him at a supporting wage. Style, 955 A.2d at
410-411. Accordingly, Father’s second claim fails.
In his statement of questions presented in his brief, Father presents the
following third issue: “Did the trial [c]ourt err, misapply the law, abuse its
discretion and/or lack sufficient evidence in finding that [Troy II’s] mental and
physical condition make it impossible for him to be employed and that [Troy
II] met his burden of proof to overcome the legal presumption that child
support terminates at emancipation?” Father’s Brief at 5. Despite listing this
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issue in his statement of questions involved, Father fails to address this
question in the argument section of his brief.
Pa.R.A.P. 2119(a) mandates that an appellant must develop an
argument with citation to and analysis of relevant legal authority. See also
Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002)
(stating that we must deem an issue abandoned, and therefore waived, where
it has been identified on appeal but not properly developed in the appellant’s
brief). Accordingly, we find this issue abandoned and waived.
Additionally, this issue was not raised in Appellant’s Pa.R.A.P. 1925(b)
statement. Thus, it is waived on that basis as well. See Commonwealth v.
Hill, 16 A.3d 484, 491 (Pa. 2011) (quoting Commonwealth v. Lord, 719
A.2d 306, 309 (Pa. 1998)) (holding “[a]ny issues not raised in a Pa.R.A.P.
1925(b) statement will be deemed waived.”)). Furthermore, to the extent
that we would have addressed the merits of this claim, we would have found
this issue to lack merit for the reasons set forth in addressing Father’s first
issue.
In his final issue, Father contends that the trial court abused its
discretion by failing to give him a downward child support deviation based on
Troy II’s receipt of SSI. Father’s Brief at 29. Father argues that Pa.R.C.P.
1910.16-5 provides that SSI benefits are not considered as income when
determining support but may be considered as other income in the household,
which may support a downward deviation from the support guidelines when it
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is necessary to avoid an unjust or inappropriate result. Id. at 29. Father
contends that the amount he was ordered to pay, $1,986.57 per month in
support, in addition to Troy II’s receipt of SSI in the amount of $733.00 per
month, was excessive, and “[t]here was no testimony that the child had
circumstances to justify the need for such large resources.” Id. at 30. Father
further asserts that “[g]iven this level of income to the household of
Mother/Troy II, the trial court abused its discretion in not granting Father any
downward support adjustment.” Id. Thus, Father maintains that his support
should be reduced by the $733.00 that Troy II receives in SSI. Id.
Our Court has stated the following in determining whether assets of a
child should be considered in support matters:
A parent must discharge his support obligation to his minor
child where he can reasonably do so, regardless of the child’s
assets. Where the parent’s resources are lacking, the court may
consider a child’s assets if such expenditures would save the child
from need or destitution and are in the child’s interest. A parent
may not evade his support obligation by depleting his child’s own
assets, unless the parent is genuinely unable to provide for the
child’s needs.
Ricco, 874 A.2d at 82 (internal citations omitted).
The trial court made the following determination on this issue:
Finally, the [c]ourt exercised its discretion in determining
that a downward deviation from the support guidelines, based
upon Troy II’s receipt of $733 a month in SSI benefits, was not
necessary to avoid an unjust or inappropriate result. As opined
by Dr. Ige, “child support payments for his upkeep and to
supplement his social security disability income [are] still needed
as Troy cannot establish full independence.” Father’s monthly net
income of $20,558.05 enables him to continue to pay $2,086.57
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in support for Troy II without imposing an unjust or inappropriate
burden upon Father.
Trial Court Opinion, 1/6/17, at 9.
Here, Troy II’s assets should not be taken into account in determining
the amount of support Father is required to provide. The court can consider
the child’s assets only when the parent’s resources are lacking. Ricco, 874
A.2d at 82. Given the fact that Father’s net monthly income is $20,558.05,
Father can reasonably pay the prescribed monthly support amount of
$2,086.57.3 As this Court has explained, Father cannot evade his support
obligation by depleting his child’s own assets, unless he is genuinely unable
to provide for the child’s needs. Ricco, 874 A.2d at 82. In light of Father’s
assets, it would be disingenuous to assert that he is genuinely unable to
provide for Troy II’s needs. Accordingly, Father’s final claim fails.
Order affirmed.
Judge Bowes joins the Memorandum.
P.J.E. Bender files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2017
3
This amount includes the additional payment of $100 monthly to be paid on
the support amount retroactively. Trial Court Opinion, 1/6/17, at 2.
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