Kutsch, D. v. Anthony, R. ( 2016 )


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  • J. S57003/16
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    DEBORAH A. KUTSCH,                      :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    Appellant        :
    :
    v.                    :          No. 252 WDA 2016
    :
    RAYMOND D. ANTHONY                      :
    Appeal from the Order Entered January 19, 2016,
    in the Court of Common Pleas of Armstrong County
    Civil Division at Nos. Docket Number 990342,
    PACSES Case Number 571101351
    BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 15, 2016
    Deborah A. Kutsch (“Mother”) appeals from the order entered in the
    Court of Common Pleas of Armstrong County on January 19, 2016
    sustaining, in part, and overruling, in part, her exceptions to the findings
    and recommendations of the hearing officer and increasing the child support
    obligation of Raymond D. Anthony (“Father”) to $572 per month, retroactive
    to June 8, 2015, and deferring collection of Father’s arrearages until his
    support obligation ends. We affirm.
    The trial court set forth the following factual and procedural history:
    [Mother] initiated this case by filing a
    complaint for child and spousal support on August 9,
    1999. The complaint regarded, in part, the parties’
    minor child, [] [born] December [], 1997 (the
    “Child”). On September 15, 1999, the Court entered
    an interim support order with a monthly support
    * Retired Senior Judge assigned to the Superior Court.
    J. S57003/16
    obligation of $838.00, which included a basic
    obligation of $788.00 together with $50.00 per
    month in arrearages. [Mother’s] net monthly income
    at that time was calculated to be $1,731.01 per
    month, which included a substantial amount from
    “USWA LOCAL 196.”        [Father] was at that time
    working full time for Allegheny Ludlum Corporation,
    now Allegheny Technologies, Inc. (“ATI”).         His
    support payments were made via wage attachment.
    On December 7, 1999, the Court further ordered
    [Father] to pay $200.00 per month toward childcare
    expenses based on the parties’ agreement to that
    effect. Other than several routine orders for the
    attachment of [Father’s] unemployment benefits, no
    substantive activity occurred in the case for several
    years. A divorce decree from Allegheny County was
    cross-filed with this Court on December 27, 2004,
    along with an accompanying agreement that, among
    other things, terminated [Father’s] spousal support
    obligation.
    On January 25, 2005, [Father] filed a petition
    to modify his support obligation. In his petition,
    [Father] stated that [Mother] was terminated from
    her employment on January 10, 2005, and therefore
    his payment of childcare expenses was no longer
    necessary.     He also sought reimbursement for
    certain overpayments of spousal support. An initial
    conference was scheduled, but [Mother] failed to
    appear.     The Court accordingly terminated the
    existing support order on February 17, 2005.
    [Mother] requested a hearing de novo, at which the
    parties appeared and “offered various stipulations of
    fact and an agreed upon Order of Support.”
    In the stipulations, the parties agreed, in part,
    that 1) there had been no need for childcare
    expenses since January 3, 2005; 2) [Father’s]
    monthly net income was $3,100.00; 3) [Mother’s]
    imputed monthly net income was $2,400.00; and
    4) [Father’s] monthly child support obligation would
    be $572.00, with no arrearages due.                The
    accompanying      interim    support    order,   dated
    March 21, 2005 and entered March 23, 2005,
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    includes these stipulations and also provides for the
    allocation of unreimbursed medical expenses (57%
    to [Father] and 43% to [Mother]) after the annual
    payment of the first $250.00 of such expenses by
    [Mother]. The agreed-upon support arrangement
    remained in effect for the next several years, during
    which [Father’s] payment obligation remained at
    either $572.00 or $622.00 monthly.[Footnote 1]
    [Footnote 1]      The record does not
    indicate why, at times, $50.00 in
    arrearages were added onto [Father’s]
    basic monthly support obligation of
    $572.00.    In the agreed-upon interim
    order    [dated]    March    21,    2005,
    arrearages were set at $0.00. In any
    event, [Father’s] basic support obligation
    remained at $572.00.
    [Father] retired from ATI in 2008, after which
    the necessary Qualified Domestic Relations Orders
    (“QDROs”) were entered by the Court to ensure that
    [Father’s] monthly support obligation would be paid
    from his ATI pension. The QDROs were entered on
    December 4, 2008 and February 2, 2009. [Father’s]
    basic monthly support obligation did not change.
    [Mother] filed a petition to modify the support
    obligation on February 4, 2010. In her petition,
    [Mother] states that the case had not been reviewed
    in more than three years and that she was then
    homeschooling the Child, who had been diagnosed
    with Tourette Syndrome. After an initial conference
    was held, the Court dismissed [Mother’s] petition,
    finding that “there were no substantial changes in
    circumstances to warrant a modification of current
    support.”    Neither party requested a hearing
    de novo, and the case again [lay] dormant for
    approximately the next five years.
    [Father] filed the instant petition to modify on
    June 9, 2015, in which he alleges that [Mother] did
    not comply with the terms of the March 21, 2005
    support order in that she 1) did not pay the first
    $250.00 of annual unreimbursed medical expenses,
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    and 2) did not pay 43 percent of the actual expenses
    incurred for the Child’s orthodontic care. [Father]
    paid 100 percent of these expenses and sought
    reimbursement. After an initial support conference,
    the Court determined that [Mother’s] imputed net
    monthly income remained $2,400.00, and calculated
    [Mother’s] actual net monthly income to be
    $2,526.04. The monthly support obligation thus was
    reduced to $495.00, which included $45.00 per
    month in arrearages. The interim order is effective
    as of the date the domestic relations section received
    [Mother’s] petition, or June 8, 2015.        [Mother]
    requested a hearing de novo, which was conducted
    by the Hearing Officer on August 31, 2015. Both
    parties appeared at the hearing pro se.
    In his findings, the Hearing Officer imputed to
    [Mother] a net monthly income of $2,484.42 based
    on her prior employment with the local union. The
    Hearing Officer declined to reduce [Mother’s]
    imputed income because he concluded that her
    embezzlement activity, which resulted in criminal
    charges and her employment termination, was
    voluntary. The Hearing Officer calculated [Father’s]
    net monthly income based on his monthly pension
    benefit from ATI. The Hearing Officer declined to
    consider certain household expenses submitted by
    [Mother], concluding that the monthly obligation
    generated by the support guidelines automatically
    would include ordinary daily living expenses and that
    none of the expenses submitted by [Mother] were
    extraordinary. Finally, although the parties appeared
    to agree that [Father] had not seen the Child in a
    period of several years, the Hearing Officer did not
    recommend a deviation from the guideline support
    amount because he concluded that none of the
    deviation factors set forth at Pa.R.Civ.P. 1910.16-5
    were applicable.     The Hearing Officer ultimately
    recommended a monthly support obligation of
    $495.00, including $45.00 toward arrearages. An
    interim order of court reflecting this amount was
    entered on September 21, 2015.[Footnote 2]
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    [Footnote 2] At the de novo hearing,
    [Father] stated that the issue giving rise
    to his modification petition, namely, the
    reimbursement      of   certain   medical
    expenses,    had    been    resolved    by
    agreement of the parties prior to the
    hearing.
    [Mother] filed timely exceptions on October 7,
    2015, wherein she raised 31 issues regarding the
    Hearing Officer’s alleged bias against her, the
    calculation of her earning capacity, the calculation of
    [Father’s] net monthly income, the Hearing Officer’s
    credibility determinations, the Hearing Officer’s
    failure to deviate from the guideline support amount,
    and certain of the Hearing Officer’s evidentiary
    rulings.    At argument, [Mother], who was then
    represented by counsel, agreed that her exceptions
    reduced essentially to the following:          1) the
    imputation to her of a $35,000.00 annual salary,
    2) the failure of the Hearing Officer to make an
    upward deviation in the support obligation based on
    the lack of time [Father] has spent with the Child,
    and 3) the Hearing Officer’s refusal to attribute
    additional income to [Father].
    The Court overruled in part, and sustained in
    part, [Mother’s] exceptions. The Court found no
    error or abuse of discretion by the Hearing Officer in
    his calculations of the parties’ imputed and actual net
    monthly incomes. The Court did, however, conclude
    that an upward deviation in the support obligation
    was warranted due to [Father’s] having spent no
    time with the Child for several years. The Court
    therefore ordered that the support obligation be
    increased back to its former amount of $572.00 per
    month, retroactive to June 8, 2015. The Court also
    made any arrearages payable after the basic support
    obligation ends.[Footnote 3] This appeal followed.
    [Footnote 3] The Child reached 18 years
    of age on December 1, 2015. He will
    graduate from high school in or about
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    June 2016.      The support obligation
    presumably will terminate at that time.
    Trial court opinion, 3/17/16 at 1-7 (citations to record omitted; emphasis in
    original).
    Mother raises the following issues for our review:
    I.     Whether the Court committed an error of law
    and/or abused its discretion in failing to use its
    authority to remand this case for a full
    evidentiary hearing into [Father’s] finances for
    the past fifteen years and to order support be
    recalculated retroactively based on those
    findings?
    II.    Whether the Court committed an error of law
    and/or abused its discretion in basing
    [Father’s] support obligation on his post
    retirement income rather than on the income
    he was earning prior to his early, voluntary
    retirement?
    III.   Whether the Court committed an error of law
    and/or abused its discretion in assigning
    [Mother] a $35,000.00 earning capacity
    without taking all factors into consideration?
    IV.    Whether the Court committed an error of law
    and/or abused its discretion by failing to
    consider Rule 1910.16-6 in regard to the
    child’s extracurricular expenses and in failing
    to order [Father] to reimburse [Mother] for his
    proportionate share of those expenses?
    V.     Whether the Court committed an error of law
    and/or abused its discretion by failing to
    consider and give proper weight to all things
    that affect the best interest of the child in this
    case?
    Mother’s brief at 4.
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    When reviewing a child support order, we employ the following
    standard of review:
    [T]his 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.
    W.A.M. v. S.P.C., 
    95 A.3d 349
    , 352 (Pa.Super. 2014) (citations omitted). A
    finding of an abuse of discretion must rest upon a showing by clear and
    convincing evidence, and the trial court will be upheld on any valid ground.
    Baehr v. Baehr, 
    889 A.2d 1240
    , 1243 (Pa.Super. 2005). Additionally, the
    fact-finder, having heard the witnesses, is entitled to weigh the evidence and
    assess its credibility. 
    Id. at 1245
    .
    Mother first complains that the trial court abused its discretion in
    failing to remand the case back to the hearing officer for “a full evidentiary
    hearing into [Father’s] finances for the past [15] years and to order support
    be recalculated retroactively based on those findings.”     (Mother’s brief at
    18.)   Mother’s argument on this issue sets forth nothing more than her
    displeasure with the January 19, 2016 support order that is the subject of
    this appeal and her desire for a “do-over.” She complains that “[t]hroughout
    the de novo hearing, [Father’s] testimony continued to be inconsistent[,
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    but] [e]ven so, the lower court has continued to give him credibility.”
    (Mother’s brief at 25.) She then rehashes Father’s testimony and claims an
    abuse of discretion because the fact-finder did not weigh the evidence as she
    wished and made credibility determinations that she disliked. Our role as an
    appellate court is not to reweigh the evidence and/or reassess credibility
    determinations. See 
    id.
     We, therefore, decline Mother’s invitation to do so.
    Mother next complains that the trial court abused its discretion when it
    based Father’s support obligation on his post-retirement income rather than
    on the income that he earned prior to his retirement, which, Mother
    contends, was voluntary. To support her contention, Mother cites Smedley
    v. Lowman, 
    2 A.3d 1226
     (Pa.Super. 2010), for the blanket proposition that
    when a parent has a support obligation and takes an early retirement, that
    parent voluntarily reduces his or her income, and therefore, the support
    obligation cannot be decreased. (See Mother’s brief at 27-28.)
    The facts of Smedley, however, differ from the facts of this case. In
    Smedley, the father voluntarily retired at age 52, despite being in good
    health and being capable of continued employment.      Smedley, 
    2 A.3d at 1227-1229
    . Here, the record reflects that Father was employed as a truck
    driver and retired when he was approximately 55 years old.1        (Notes of
    testimony, 8/31/15 at 6.) Father testified that he retired because he needed
    1
    The record reflects that Father was born on December 26, 1953, and
    retired in 2008.
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    hip replacements and could no longer perform his job duties.            (Id.)
    Therefore, unlike Smedley, Father’s testimony, found credible by the
    fact-finder, established that Father was not in good health and not capable
    of continued employment when he retired. Consequently, Mother’s reliance
    on Smedley for the blanket proposition that an early retirement equates to
    a voluntary retirement is misguided.
    We also note that Father’s current support obligation of $572 per
    month was set in 2005 and was based on Father’s pre-retirement income.
    (Interim order of court, filed 3/23/05.) Therefore, Mother has no grounds to
    complain about the basis for the support obligation.      Consequently, this
    claim lacks merit.
    Mother next complains that the trial court abused its discretion when it
    assigned her an earning capacity of $35,000 “without taking all factors into
    consideration.” (Mother’s brief at 30.) The record reflects that Mother was
    terminated from her job as a secretary at a local union in January 2005
    because she was charged with and convicted of embezzlement.         Following
    her termination from employment, Father filed a modification petition.
    Thereafter, the parties stipulated to an imputed income for Mother of $2,400
    per month. (Hearing officer’s findings and recommendations, filed 3/23/05;
    see also interim order of court, filed 3/23/05.) The record further reflects
    that although Mother filed a petition for modification on February 1, 2010,
    the trial court found no substantial changes to warrant a modification, and
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    Mother did not seek a de novo hearing. (Order denying petition to modify,
    2/26/10; notice of right to request a hearing, 2/26/10.)
    Mother now complains that she should not be assigned an annual
    earning capacity of $35,000. In support, she cites Novinger v. Smith, 
    880 A.2d 1255
     (Pa.Super. 2005), for the proposition that when a parent loses
    employment due to an “infraction,” that parent should not have to pay
    forever for losing that employment. (Mother’s brief at 31.) Although Mother
    correctly sets forth that part of the Novinger opinion, Mother ignores the
    part that distinguishes losing a job due to an “infraction” such as tardiness
    from losing a job due to criminal behavior such as her own felonious
    embezzlement activities.
    Our courts have held that those seeking reductions in support
    obligations due to criminal behavior that results in incarceration will not be
    rewarded for that behavior, and upon release, must start paying their
    arrears.   See Novinger, 
    880 A.2d at 1257
    ; see also Yerkes v. Yerkes,
    
    824 A.2d 1169
     (Pa. 2003) (finding that incarceration is not a change in
    circumstances that can be used to modify a support order).                The policy
    behind this rule is that imprisonment and its resulting reduction in income
    are   foreseeable   consequences   of   criminal   activity   akin   to    voluntary
    unemployment. Yerkes, 824 at 306. Taking this to its logical extension as
    it applies here, it was foreseeable to Mother that her embezzlement could
    lead to job loss and a criminal conviction that could severely impede her
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    ability to secure future employment. As such, Mother’s reduction in income
    was in her control and she cannot now be rewarded for her criminal activity
    by using it as a change in circumstances to reduce her imputed earning
    capacity. Therefore, this claim lacks merit.
    Mother next complains that the trial court abused its discretion when it
    failed to consider Pa.R.Civ.P. 1910.16-6 in denying her request for an
    upward deviation in Father’s support obligation because of the Child’s
    extracurricular expenses.    Pennsylvania Rules of Civil Procedure 1910.1
    through 1910.50 govern support actions.        In deciding whether to deviate
    from the amount of support determined by the guidelines, the trier-of-fact
    must consider, among other things, the Child’s unusual needs and unusual
    fixed obligations.   Pa.R.Civ.P. 1910.16-5.      Here, Mother concedes that
    Rule 1910.16-5 “may not apply.”      (Mother’s brief at 34.)   Consequently,
    Mother concedes that the expenses that she set forth are not “unusual
    needs” and/or “unusual fixed obligations.”
    Instead, Mother argues that Rule 1910.16-6 applies. Under that rule,
    childcare expenses, health insurance premiums, unreimbursed medical
    expenses, private school tuition, and mortgage payments may warrant an
    adjustment to the basic support obligation. The expenses that Mother sets
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    forth,2 however, bear no relationship to the enumerated expenses set forth
    in Rule 1910.16-6. Therefore, Mother’s claim that the trial court abused its
    discretion for failing to consider an inapplicable rule to determine that an
    upward adjustment was not warranted cannot, and does not, constitute an
    abuse of discretion. Consequently, this claim lacks merit.
    Mother finally complains that the trial court abused its discretion by
    failing to consider the best interests of the Child.    Mother argues:     “By
    reviewing the case history and questioning [Father] during the de novo
    hearing and argument, [Mother] has clearly and convincingly shown the
    inconsistencies in [Father’s] testimony, yet the lower court has chosen to
    ignore them.    [Mother] beseeches that this Honorable Court not do the
    same.” (Mother’s brief at 36.) Once again, Mother invites us to reweigh the
    evidence and reassess the fact-finder’s credibility determinations.      Once
    again, we decline her invitation to do so because that is not our role as an
    appellate court. See Baehr, 
    889 A.2d at 1243
    .
    Order affirmed.
    2
    In addition to household expenses, Mother sets forth certain of the Child’s
    expenses for the “previous 12 months,” including test fees, purchase of a
    vehicle, traveling expenses related to the Child’s participation in Boy Scouts,
    lacrosse expenses, cell phone, car insurance, vet bills for the Child’s dog,
    and school lunches. (Notes of testimony, 8/31/15 at Exhibits 2 and 3.)
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/15/2016
    - 13 -
    

Document Info

Docket Number: 252 WDA 2016

Filed Date: 8/15/2016

Precedential Status: Non-Precedential

Modified Date: 12/13/2024