Miller, H. v. Miller, C. ( 2019 )

J-S73018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HEATHER M. MILLER, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
CHRISTOPHER M. MILLER,
Appellee No. 485 WDA 2018
Appeal from the Order March 29, 2018
In the Court of Common Pleas of Erie County
Domestic Relations at No(s): NS2015-00162/PACSES 375115123
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 27, 2019
Heather M. Miller (Mother) appeals from the March 29, 2018 support
order issued pursuant to this Court’s remand instruction contained in our
memorandum opinion1 filed in response to Christopher M. Miller’s (Father)
appeal from the trial court’s January 8, 2017 order. We affirm.
The trial court set forth the following information in its Pa.R.A.P. 1925(a)
opinion, stating:
Mother, on April 22, 2015, filed a Complaint for Support
against Father requesting support for the parties’ four minor
children, as well as spousal support. Pursuant to the parties’
agreement, a June 16, 2015 Order [was] entered setting Father’s
monthly support obligation at $2,840, plus arrears. The order
applied $907.13 monthly to [alimony pendente lite] APL,
$1609.54 monthly to child support and ordered a $323.33
monthly mortgage contribution. The Order established Father’s
____________________________________________
1 Miller v. Miller, 181 A.3d 1285 (Pa. Super. filed December 29, 2017)
(unpublished memorandum) (Miller I).
J-S73018-18
monthly net income as $7,359.40 and Mother’s as $1969.80.
Following Father’s filing of August 5, 2015 and February 4, 2016
petitions for modification, the support order did not change.
On October 24, 2016, Father filed another Petition for
Modification of an Existing Support order alleging that his former
earning capacity from operating his own masonry company had
been greatly reduced and [was] unable to be reclaimed. Father
opined that his actual wages as a mason working for Stewart
Concrete, a former competitor to Father’s business, should be
used to calculate his income. Following a support conference, a
November 17, 2016 Interim Order of Court issued[,] increasing
Mother’s monthly net income to $2,008.14, maintaining Father’s
monthly net income at $7,359.40, and decreasing Father’s
support obligation to $2,548.90, plus arrears. The November 17,
2016 Interim Order reduced the overall support obligation to
reflect the emancipation of the parties’ oldest child and removed
the mortgage contribution requirement. Upon Father’s Demand
for Court Hearing, the undersigned presided over a January 18,
2017 de novo hearing and issued an order o[n] the same date
finding the Interim Order appropriate and making it a final order.
Father, on February 17, 2017, appealed the January 18, 2017
Order. The Superior Court remanded the case for recalculation of
child support using Father’s net monthly income as an employee
of Stewart Concrete, retroactive to October 24, 2016.
In accordance with the Superior Court’s decision, a January
8, 2018 Order issued reducing Father’s monthly net income to
$3,191.23 and calculating his monthly support obligation as
$739.80, plus arrears. The order further provided:
Support is recalculated using [F]ather’s eighteen (18)
month earning history. [Father] shall pay
$739.80/month support for three minor children
effective 10/24/16. The guideline calculation does not
call for a Spousal Support obligation. Therefore,
Spousal Support is terminated retroactive to
10/24/16. As a result of the retroactive modification
a significant overpayment exists. A Notice of
Proposed Modification will be sent to [Mother] in an
attempt to resolve the overpayment.
Mother, on January 23, 2018, filed a Motion for
Reconsideration. The undersigned, on January 31, 2018, granted
-2-
J-S73018-18
Mother’s Motion for Reconsideration and scheduled the matter for
a March 27, 2018 hearing. Following the hearing, this [c]ourt
issued its March 28, 2018 Order, which reduced Father’s monthly
net income to $3,191.23 in accordance with the remand
instructions and removed the APL award. Mother filed her timely
appeal.
Trial Court Opinion (TCO), 5/16/18, at 1-3.
In Mother’s appeal to this Court, she raises the following single issue for
our review:
Did the trial court err in terminating [Mother’s] [APL] following
remand by this Court of the parties’ child support case?
Mother’s brief at 4. Notably, Mother does not take issue with the amount
awarded as to child support; she only questions the trial court’s elimination of
the APL award rather than allowing it to remain in effect despite the change
in income.
The trial court addressed this issue as follows:
As an initial matter, the parties’ divorce is still pending. As
Mother’s only issue on appeal involves APL, it appears as though
the matter is not properly raised on appeal. See Miller v. Miller,
305 WDA 2017[,] citing Hrinkevich v. Hrinkevich, 676 A.2d 237,
239 (Pa. Super. 1996).
Regardless, Mother’s issue on appeal is without merit.
Counsel argues that it is contrary to the Superior Court’s directive
to apply Father’s actual income to the APL award. Meanwhile, the
Superior Court’s statements with regard to APL only went to
appellate jurisdiction over the same, rather than a directive for
this court. See Miller v. Miller, …, 305 WDA 2017 at FNs 1 and
3.[2] The fact that the order was interlocutory for appellate
____________________________________________
2 For purposes of our discussion concerning Mother’s arguments, we quote the
footnotes included in this Court’s Miller I decision, which state as follows:
-3-
J-S73018-18
purposes did not divest this court, as the trial court, of jurisdiction
to modify APL. To the contrary, “[a]n award of [APL] may be
modified or vacated by a change in circumstances. The award is
always within the control of the court.” Cook v. Cook, [186 A.3d
1015, 1023] (Pa. Super. 2018)[,] quoting Litmans v. Litmans, 673
A.2d 382, 388 (Pa. Super. 1996). While Mother’s argument may
be technically correct that the Superior Court left the APL order
intact, the reason was that the Superior Court was without
jurisdiction to consider the same. This [c]ourt, however, has
jurisdiction over APL and determined that the purpose of an APL
award is no longer served when Father’s income is reduced from
$7,359.40 to $3,191.23. Such a reduction is clearly a change in
circumstances warranting modification of the APL order.
____________________________________________
1 Mother filed for divorce during 2015 and, as of the date of the
January 18, 2017 support hearing, no divorce decree had been
entered. While we have jurisdiction to consider claims related to
child support, we cannot address issues related to spousal support
or [APL] until a divorce decree has been entered and the certified
record shows that no economic claims remain to be decided.
Hrinkevich v. Hrinkevich, 676 A.2d 237, 239 (Pa. Super. 1996)
(“[T]he portion of a trial court order attributable to child support
is final and immediately appealable; however, the portion of an
order allocated to spousal support is interlocutory.”). Hence, we
address Father’s arguments only as they relate to his child support
obligation.
3 As Father’s appeal of the allocated order relating to APL is
interlocutory, the calculation of that obligation is not affected by
our decisions herein. Hrinkevich, supra. To the extent that
Father’s independent financial obligation to Mother continues after
the entry of a final divorce decree, he can appeal the trial court’s
determination at th[at] juncture. Thomas v. Thomas, 760 A.2d
397, 398 (Pa. Super. 2000) (“[W]hen all economic matters
involved in a divorce are resolved, any support order can be
reviewed and corrected when the court finalizes the equitable
division of the property.”).
Miller I, No. 305 WDA 2017, unpublished memorandum at 1-2, 11 (Pa.
Super. filed December 29, 2017).
-4-
J-S73018-18
In making its determination, the Honorable Superior Court
provided:
We find that the trial court’s refusal to recognize that
the imputed obligation is outdated and contrary to
reality, as shown by the certified record, [and] is
manifestly unreasonable. Particularly convincing is
Father’s principled attempt to mitigate the loss of his
income and to continue to satisfy a support obligation
that is approximately seventy percent of his monthly
wages. Stated plainly, to the extent that Father could
have earned $7,359.40 per month as the owner of a
masonry business, the certified record does not
sustain the court’s decision to continue to assess that
earning capacity at this juncture. As we recognized in
Novinger [v. Smith, 880 A.2d 1255,] 1247 [(Pa.
Super. 2005)], “[a]t some point, the courts should
[revisit the obligor’s] true earning capacity. Since the
grounds for the court’s use of Father’s earning
capacity as the basis for determining his support
obligation, i.e., the appearance of an attempt to shirk
his financial responsibilities, have diminished since
Father first stipulated to his net monthly income, we
conclude that the court abused its discretion in
denying Father’s petition to modify his support
obligation. Support should be calculated in light of
Father’s eighteen month earning history as an
employee working forty to sixty hours per week rather
than as the owner of a successful business. Thus, we
remand the case with instruction for the trial court to
fashion a guideline child support order utilizing
Father’s net monthly income pursuant to Pa.R.C.P.
1910.16-2 retroactive to October 24, 2016, the date
that Father filed the underlying petition.
[Miller v. Miller,] Superior Court Non-Precedential Decision,
December 29, 2017 at 10-11. Despite the Superior Court’s
assessment of Father’s $7,359.40 assessed earning capacity as
outdated, contrary to reality, manifestly unreasonable and an
abuse of discretion, Mother’s argument presumes that said
earning capacity should be left in place as far as the [APL] award.
Such an argument is not only contrary to the law of the case, but
it is contrary to a general sense of justice or logic.
-5-
J-S73018-18
TCO at 3-4.
To address Mother’s issue on appeal, we are guided by the following:
The Divorce Code provides, “In proper cases, upon petition,
the court may allow a spouse reasonable [APL], spousal support
and reasonable counsel fees and expenses.” 23 Pa.C.S. § 3702.
By way of background:
[APL] is an order for temporary support granted to a
spouse during the pendency of a divorce or annulment
proceeding. [APL] is designed to help the dependent
spouse maintain the standard of living enjoyed while
living with the independent spouse. Also, and perhaps
more importantly, [APL] is based on the need of one
party to have equal financial resources to pursue a
divorce proceeding when, in theory, the other party
has major assets which are the financial sinews of
domestic warfare. [APL] is thus not dependent on the
status of the party as being a spouse or being
remarried but is based, rather, on the state of the
litigation…. [T]he purpose of [APL] is to provide the
dependent spouse equal standing during the course of
the divorce proceeding…. [APL] focuses on the ability
of the individual who receives the [APL] during the
course of the litigation to defend her/himself, and the
only issue is whether the amount is reasonable for the
purpose, which turns on the economic resources
available to the spouse.
Schenk v. Schenk, 880 A.2d 633, 644 (Pa. Super. 2005).
The amount awarded as [APL] is within the sound discretion
of the trial court and, absent an abuse of discretion, will not be
disturbed on appeal. Litmans v. Litmans, … 673 A.2d 382, 388
(Pa. Super. 1996). An award of [APL] “may be modified or
vacated by a change in circumstances. The award is always within
the control of the court. It is the burden of the party seeking to
modify an order of support to show by competent evidence that a
change of circumstances justifies a modification.” Id. (citations
omitted). “If an order of [APL] is bolstered by competent
evidence, the order will not be reversed absent an abuse of
discretion by the trial court.” Strauss v. Strauss, 27 A.3d 233,
236 (Pa. Super. 2011).
-6-
J-S73018-18
Pursuant to Pa.R.C.P. 1910.16-2, “the amount of support to
be awarded is based upon the parties’ monthly net income.” The
same rule directs that, to arrive at monthly net income, the court
shall deduct specific items from monthly gross income. Pa.R.C.P.
1910.16-2(c). In addition, the rule instructs that “[m]onthly gross
income is ordinarily based upon at least a six-month
average of all of a party’s income.” Pa.R.C.P. 1910.16-2(a)
(emphasis added).
Cook v. Cook, 186 A.3d 1015, 1022-23 (Pa. Super. 2018) (underlined
emphasis added).
The essence of Mother’s argument on appeal is that the APL award
should have remained in effect because this Court’s remand in conjunction
with the Miller I appeal only included a directive as to child support and that,
therefore, the trial court had no authority to retroactively terminate the APL
award. Mother further asserts that the modification of APL could only occur
at the conclusion of the final decision or settlement of equitable distribution.
We disagree.
First, we rely on the portion of this Court’s Cook decision that we have
underlined supra, which allows for modification of APL due to a change in
circumstances and provides that the award remain under the control of the
trial court. Moreover, this Court’s Miller I decision provided that it did not
have jurisdiction over the trial court’s APL ruling. Thus, it remanded the case
back to the trial court for calculations solely dealing with Father’s child support
obligation. Additionally, we note that the Miller I decision was filed on
December 29, 2017. Therefore, the trial court’s order issued on January 8,
2018, eliminating Father’s APL obligation occurred after this Court’s
-7-
J-S73018-18
relinquishment of jurisdiction of the entire case. Nothing in the Miller I
decision indicates that this Court retained jurisdiction of the APL issue.
Also, we must disagree with Mother’s argument, citing Fried v. Fried,
501 A.2d 211 (Pa. 1985), that the APL order should have remained in effect
until the equitable distribution portion of the matter was concluded (when the
divorce decree would be entered). Mother misinterprets the Fried decision,
which directs that appeals from interlocutory orders, such as an APL order,
are unappealable. Id. at 215. However, the Fried case does not stand for
the proposition that an APL order cannot be modified or vacated due to a
change in circumstances.
Accordingly, we conclude that the trial court did not abuse its discretion
in directing the elimination of the APL payment to Mother due to a change in
circumstances. We, therefore, affirm the trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2019
-8-