M.W. v. C.S.W. ( 2014 )

J-A31027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
C.S.W.
Appellant No. 144 MDA 2014
Appeal from the Order Entered December 23, 2013
In the Court of Common Pleas of Dauphin County
Domestic Relations at No(s): 2012-CV-03589-SU
PACSES NO. 148113311
BEFORE: BOWES, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 09, 2014
C.S.W. appeals from the order entered on December 23, 2013,
ordering C.S.W. to pay child and spousal support.1 Following a thorough
____________________________________________
1
Our standard of review for a support orders is well-settled:
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.
Summers v. Summers, 35 A.3d 786, 788 (Pa. Super. 2012) (citation
omitted).
(Footnote Continued Next Page)
J-A31027-14
review of the submissions by the parties, the relevant law, and the certified
record, we affirm on the basis of the trial court opinion.
We note that there are significant problems with both C.S.W.’s brief
and the Pa.R.A.P. 1925(b) statement. The totality of these problems
renders us unable to conduct a proper legal analysis of C.S.W.’s arguments
as presented.2
Similarly, the 1925(b) statement3 submitted by C.S.W. was 25 pages
long, containing 50 issues and sub-issues. While we have the authority to
find all issues waived when such a 1925(b) statement has been filed, 4 here,
the trial court distilled the claims to three properly preserved and argued
issues. They address questions of M.W.’s income and earning capacity,
unreported income and extracurricular expenses, and allocation of support.
Because the trial court has addressed those issues, our ability to conduct
appellate review has not been totally hindered by C.S.W.’s deficient
_______________________
(Footnote Continued)
2
In re A.B., 63 A.3d 345 (Pa. Super. 2013) (meaningful review not possible
when appellate court must guess what issues are being appealed).
3
Pa.R.A.P. 1925(b) refers to this document as a “concise statement of
errors complained on appeal.” (emphasis added).
4
See Jiricko v. Geico Ins. Co., 947 A.2d 206 (Pa. Super. 2008) (waiver
appropriate for five page incoherent submission); Tucker v. R.M. Tours,
939 A.2d 343 (Pa. Super. 2007), aff’d 977 A.2d 1170 (Pa. 2009) (waiver
appropriate for 26 page, 76 paragraph plus exhibits submission); Jones v.
Jones, 878 A.2d 86 (Pa. Super. 2005) (waiver appropriate for filing 7 page,
29 paragraph unmanageable statement).
-2-
J-A31027-14
submissions. See Kern v. Kern, 892 A.2d 1 (Pa. Super. 2005) (Appellate
court may address issues when failure to follow appellate rules does not
hamper review). Accordingly, we limit our review to those issues identified
and addressed by the trial court.
Our review of the certified record and relevant law reveals no abuse of
discretion or errors of law attendant to the rulings on those issues identified
and addressed by the trial court. See Trial Court Opinion, 4/16/2014, at 5-
11. Accordingly, we adopt the trial court’s well-reasoned decision as
dispositive of the discernible issues raised in this appeal. The parties are
directed to attach a copy of the trial court’s opinion in the event of further
proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2014
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M.W., IN THE COURT OF COMMON PLEAS
. Plaintiff-Obligee DAUPHIN COUNTY, PENNSYLVANIA
v. : NO. 999 DR 2012
PACSES NO. 148113311
A.W. alkla C.W.,
Defendant-Obligor CIVIL - SUPPORT l'..J
.C.>. 1-,
,
('
MEMORANDUM OPINION
: (J
Before the court is the appeal filed by support obligor A W, a/kJa CWJ 'fl'~m fJ order
directing she pay child and spousal support. l This opinion is offered pU1'sU~ to P{l)R.A.P .
. . '< "
1925(a). U> :5 -
BackgrOllnd
The parties CW and MW were manied in 1994 and are the parents of three children
(dates of bilih 9/95, 5/97 and 5/00).2 CW is their father a.nd the obligor in these proceedings and
MW is their mother and obligee. Obligee did not woi'k outside the home for an eleven and one-
half year period while the children ",'ere young. On~e' they were older, she began palt-time
employment in various positions as a daycare provider or substitute teacher at the elementary
school level. (See N.T. 6) CW has been employed full-time by the Commonwealth for all
relevant times.
On June 13,2012, following their separation, obligee initiated proceedings seeking child
and spousal support. Following an office conference, I signed two orders hly 9, 2012, as
recomI!lended by the Dauphin County Domestic Relations Section conference officer. The first,
effective June 13 through July 31, 2012 directed that obligor pay obligee child suppOli of $984
per month plus $90 per month on arrears. The second, effective August 1,2012, directed obligor
pay child and spousal stippOli of $1,312 per month plus $120 per month on arrears.
I According to obligor's Statement of Errors, AW was bom male but considers herself female and is in
the process of legal fOrmalities to become recognized as female, including a name change to CWo This
couli will thus identify obligor by her chosen name and gender.
2 The oldest child is not yet emancipated. . .
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I
I,
For the pU1'Po~e of calculating the' orders, the officer assigned monthly net incomes of
$3,196 to obligor and $1,849 ~o obligee, respectively. Obligor's income was based upon his
wages with {he Commonwealth. Obligee's income was based upon her wages working full-time
, as a daycare provider at a daycal'e center . .Obligee began working there in August 2011 making
$12 per hour (40 hours per week), a y'eal'ly gross income of $24,960, or an $1,849 monthly net
, income. The conference officer rejected obligor's argument that obligee be held to an earning
capacity as a full-time teacher since she had never held that position. The conference officer also
rejected obligor's argument seeking to add to obligee's income monies she made working at
sporting events in which the parties' children p~rticipated. (Obligor's Notice of Appeal Exbt. A)
Obligor sought de novo review claiming obligee's income should have been based upon
an earning capacity of $40,000 and $50,000 per year as a full-time celtified teacher. Obligor also
sought to incl~de in her income $2,000 per year she alleged)y made working at spOlting events.
(Obligor's Notice. of Appeal Exbt. B) At a November 1,2012 de novo hearing, obligee testified
she had a Bachelor's degree in early childhood education and a Pennsylvania teaching celtificate
though it had lapsed. In order to reactivate her certifi~ate, and become eligible to teach full-time,
obligee needed to complete 180 hou~s of continuing professional education 01' six college credits.
Obligee was pursing the fonner method and believed she had about 90 hours complete as of the
hearing. Obligee testified her goal was to complete her hours by September 2013. Obligee also
testified that prior to working for the daycare center, she was a substitute teacher for fiv~ years in a
local school distdct earning between $95 and $105 pel' day, wh~n called to work.
At the conclusion of the November I, 2012 hearing, I issued an order denying obligor's
appeal, however, I directed as follows: "Case is remanded to the Domestic Relations Office to
schedule a support conference for September 2013, at which time it is anticipated that mother
[obligee] will have completed all necessary requirements to be reactivated as a ce11ified teacher."
Obligor did not seek further appeal to the Superior Court.
On February 12, 2013, obligor filed a petition to modify her support obligation.
Following a conference, I signed the officer's recommended order March 21, 2013, which
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slightly reduced obligor's monthly suppOli obligation to $1,280 and also directed she p~y $120
per month on al1'eru·s. Fol' the purpose of calculating the order, the officer assigned monthly net
incomes of $3,148 to obligor and $1,815. to obligee. The officer again based obligee's income
upon her full-time daycarecenter wages. He also declined to include in obligee's income
sp0l1ing event monies. (Obligor's Notice of Appeal Exbt. E) Obligor again sought de novo
review and following a hearing, I denied obligor's appeal, July 19, 2013. Obligor did not seek
further appeal to the Superior Comt.
On September 6, 2013, the pmiies attended the remand conference as directed in . my
. November 1, 2012 order. Following that conference, I signed the officer's recommended order
September 17, 2013 (effective September 6, 2013), \vhich increased obligor's monthly support
obligation to $1,348, plus $129 pel' month on al1'ears. The order was allocated $992 for child
support, $116 for spousal support and $240 as a mOltgage contribution. The order additionally
directed that the patties pay for all extracurricular expenses in propOltion to their net incomes:
65% for obligor and 35% for obligee. For the purpose of calculating SUppOlt, the conference
officer assigned monthly net incomes of$3,219 to oblig0l' and $1,840 to obligee. The conference
officer again rejected obligor's argument that obligee be held to an eaming capacity as a full-
time elementary level teacher. Obligee's income was again based upon her full-time wages at the
daycare center between December 23, 2012 and August 17, 2013. During that period, she
averaged $963 gross per bi-weekly period, or $25,038 gross per year, which translated to an
$1,840 monthly net income. (Obligor's Notice of Appeal Exbt. H)
Obligor sought de novo review and I held a hearing December 18,2013. The primary
issue raised involved obligee's income and eaming capacity. The relevant evidence elicited was
as follows: As of the date of the h~aring, obligee, then 50 years old; had been credited by the
~ommonwealth's Depalil11ent of Education with 84 01' 86 o~ her 180 continuing education hours
towards reactivation of her teacher ce11ification. (N. T. 15, 19-20) In: addition, she claimed that
since the NC?vember 1, 2012 hearing. she had accrued approximately 40 more hours from
working at her daycare center job, though she not~dthose credits had not been reported by the
daycare center and was the subject of an employment dispute. (N.T. 15) Obligee had been fired
3
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from the daycare center October 4, 2013 due to absenteeism, which she claimed was at least
partially the result of her need to appear in cOUlt so many times? (N.T. 11-12) Obligee elected to
reactivate her teaching celtificate via continuing education hours because she could obtain those
credits while she was working and because they were free. She did not take college courses for
credits due to the additional expense and because she lacked the time due to having custody of the
palties' children one-hundred percent of the time. (N.T. 10-11)
Immediately after her job was tem1inated at the daycare center, obligee applied for and was
accepted by a substitute teacher service to work in thirteen local school districts. (N.T. 12) By the
end of October 2013, obligee was working as a substitute foul' to five days per w~ek, earning $80 to
$100 per day (gross) depending upon the school district assigned. (N.T. 12-]4, 16) Her most recent
placement has been providing learning support at a local elemental)1 school, which pays her $95 per
day. This job offered the potential of becoming a 10ng-tenl1 substitute position. (N.T. 16-17)
Obligee anticipated that if that occurred, she would be able to accrue sufficient free continuing
education hours to reactivate her elementary teaching ce1tificate by the begi1Uling of the 2014-2015
school year. (N.T. 16) That certificate would qualifY-her to teach grades K through 3. (N.T. 16)
FoHowing the de novo hearing, I issued an order December 23, 2013 denying obligor's
~ .
appeal. Obligor thereafter filed a timely appeal to the Superior COUIt cUl1'ently pending.
. Legal Discussion
Following obligor's appeal, I directed she file a Concise Statement ofEITol's Complained
of on Appeal. In response, obligor submitted a 25-page statement in which she raises well over
50 issues and sub-issues. 4 I necessarily distill Obligor's non-concise Statement to the following
issues: (1) the cOUlt erred by failing to hold obligee to a full-time earning capacity as a certified
teacher; (2) the COUlt erred by failing to include in obligee's income certain "under-the-table"
3 She was denied unemployment compensation but was challenging that decision as ofthe de novo hearing.
(N.T.1-2)
4 Obligor's Statement of El"Ol'S is in clear violation of the Rules of Appellate Procedure which direct that
"[t]he Statement should not be redundant 01' provide lengthy explanations as to any error," Pa.R.A.P.
1925(b)(4)(iv) . .
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momes; and (3) the cOUli ell'ed by allocating the SUppOlt order. In addition, obligor raises
numerous other issues which I address below in the miscellany section.
Obligee's Income / Earning Capacity
Obligor's primary reason for. appealing is her claim that tms COUlt failed
.
to hold obligee "to
'a standard of income for which she is capable of making." (Statenlent of Errors No. 11 (f)) Before
addressing the merits of this issue, however, I first address a related claim raised numerous times in
obligor's Statement of ElTors. Obligor asserts that both this COUlt and the conference officer failed to
hold obligee "accountable" or failed to "enforce" the telms of my November 1, 2012 order.
(Statemerit Nos. 1, 2, 5, 6, 8) Obligor interprets that order as having affirmatively direc_t`` that
obligee reactivate her teaching ce11ificate within ten months, by September 2013. (See e.g.
Statement No.2, "The Plaintiff was Court Ordered to be Reactivated as a Certified Teacher by
September 2013.") This is a cleat misreading of my order, which specifically stated the case was
remanded for a September 2013 support conference, "at which time it is anticipated that mother
[obligee] WIll have completed all necessary requirements to be reactivated as a certified teacher."
.The language - "it is anticipated" - is not a directive, but an anticipation, or contemplation, of a
potential future event, the occurrence or non~OCCUl"l'enCe of which was the subject of the remand
inquiry.
I thus tum to the merits of the eaming capacity issue. Generally, parents have an absolute
. ~
obligation to support their childl'en and this obligation "must be discharged by the parents even if it
causes them some hardship." Mencer v. Ruch, 928 A.2d 294, 297 (pa. Super. 2007) (citations and
internal quotation marks omitted). "(I]n Pennsylvania, a person's income must include his earning
capacity, and a voluntary reduction in eamed income will not be countenanced[.]" Id. ·"Where a
patty willfully fails to obtain appropriate employment, his or her income will be considered to be
equal to his or her earning capacity[,]" not equal to his or her actual earnings. Ney v. Ney, 917
A.2d 863, 866 CPa. Supel·. 2007) (citation omitted).
The applicable Support Guidelines addressing earning capacity are as follows:
Rule 1910.16-2. Support Guidelines. Calculation of Net Income.
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,,
1
i
(d) Reduced or Fluctuating Income.
I
! * *
(4) Earning Capadty. If the trier of fact determines that a party to a SUppOlt
j
action has willfully failed to obtain or maintain appropriate employment, the trier
i'I of fact may impute to that palty an income equal to the party's earning capacity.
!
. Age, education, training, health,wol'k expei'ience, earnings history and child care
responsibilities are factors which shall be considered in determining earning
capacity, In order for an earning capacity to be' assessed, the trier of fact must
state the reasons for the assessment in writing or on the record. Generally, the
trier of fact should not impute an earning capacity that is.greater than the amount
the paliy would earn from one full-time position. Determination of what
constitutes a reasonable work regimen depends upon all relevant circumstances
including the choice or jobs available within a particular occupation, working
hours, working conditions and whether a party has exerted substantial good faith
effOits to find employment. .
Pa.R.C.P.1910.16-2(d)(4),5
"[A] person's suppOli obligation is determined primarily by the parties' actual financial
resources and their earning capacity. Although a person's actual earnings usually reflect his
earning capacity, where tllere is a divergence,' the obligation is' determined more by earning
. .
capacity than actual earnings." Baehr v. Baehr, 889 A.2d 1240, 1244-45 (Pa. Super. 2005) (citing
Woskob v. Woskob, 843 A.2d 1247, 1251 (Pa. Super. 2004) (citations' omitted»). "[AJ person's
earning capacity is defined not as an amount which the person could theoretically earn, but as
that amount which the person could realistically earn under the circumstances, considering his 01' .
her age, health, mental and physical condition and training." Haselrig v. Haselrig, 840 A.2d 338,
340 (Pa. Super. 2003) (quoting Strawn v. Strawn, 664 A.2d 129, 132 (Pa. Super. 1995).
The record supports that obligee be currently held to her actual eamings instead of being
assigned an eaming capacity as a fully cm1ified, beginning eiementalY school teacher. 6 The
5 The Rules of Civil Pl'Ocedme promulgated by the Supreme Court, have the force of statute. Maddas v.
Dehaas, 816 A.2d 234,238 (Pa. Super. 2003), appeal denied. 827 A.2d 1202 (Pa. 2003).
6 I note that as of the remand hearing (September 2013), obligee's income was based upon her daycare
center eal11ings making $12 per hour, or $96 pel' da)' (gross). Her most current income as a substitute
teacher, as of the de novo hearing (December 2013), was $95 pel' day (gross). As such, her most cunent
income is reflective of the income upon which the most reCel)t support order was based, and is thus still
appropriate.
6
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evidence presented to the cpurt was that obligee did not work full-time as a teacher during the
course of the pruiies' maniage. In August 2011, following their separation, obligee obtaine.470 A.2d 995, 996 .
(1984). 'A'bile there is no limitation on what issues might be addressed at a de novo hearing, a
. patty must neveltheless raise an isslie and present evidence in SUppOlt if he or she wishes the
COUlt to address it. Capuano v. Capuano, 823 A.2d 995, 1002 (Pa. Sttper. 2003) ("the very
essence of a de novo hearing entails that pru.ties be permitted to present eVIdence"). As obligor
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presented no evidence whatsoever on this issue at the de novo hearing, this court considers it
waived. FUlihermore, to the extent obligor believed there were legal infirmities following the
November 1, 2012 de novo hearing, her -remedy was to seek an appeal. Since she did not, any
potential issues obllgor might have raised following that hearing have also been waived.
Allocation
,
Obligor argues that it was enol' for this court to fail to _direct that the September 17. 2013
support order be unallocated. (Statement No. 17) Under the Su,pport Guidelines, an order for
both child support and spousal support / alimony pendente lite may be unallocated or allocated;
the cOUli issuing such an order must consider whether to allocate such an award as welJ as the tax
consequences of the final support award. Pa.R.C.P. 1910.16-4(f)(1). An unallocated support
award including child supp0l1 and spousal support / APL is taxable to the obligee as income and
deductible to the obligor; where the order is allocated, the pOliion ordered as child support is
neither taxable to the obligee nor deductible to the obligor. Pa.R.C.P. 1910.16-4(f)(2). The
SUPPOli Guidelin~s assume that an order will be unallocated . Pa.R.C.P. 191 0.16-4(f)(1) and 2005
Explanatory Comment. Where an order is allocated, "an adjustment shall be made to the award
giving considera~ion to the -federal income ta,'{ consequences of an allocated ordet' as may be
appropi'iate under the circumstances." Pa.R.C.P. 1910.16-4(f)(I), No consideration of federal
income tax consequences shall be applied- jf the order is unallocated or the order is only for
spousal support I APL. Id.
As noted at the de novo hearing, whether the September 17, 2013 order was unallocated
or allocated was unclear; language within that order was internally inconsistent wherein it
indicated at one place it was unallocated and at another it was allocated. (See N.T. 8) The
Dom~stic Relations Section Director nevertheless clarified at the de novo hearing that the order
was considered allocated. (N.T. 8) Given the assumption that a child and spousal support / APL
order will be unal.located and given the further requirement that an allocated order must include
consideration of federal tax consequences (which did not occur in this case), the order should
have been issued as unallocated. Thus, when I re-obtain jurisdiction in this matter, the order will
be retroactively amended (to September 6, 2013) to so indicate.
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Miscellaneous'Issues
, Obligor raises many claims of enor concerning the calculation of SUppOlt arrived at by
the conference officer and recommended to 'the cOUtt in arriving at the ,first two support orders I
issued in this case, on July 9, '2012 mid March 21, 2013, respectively. (Statement pp. 17-23)
Amongst her allegations are that the conference officer el'l'ed by changing the income
methodology
.
used to arrive at the March 21 ; 2013 SUppOlt O1:del'. by failing to base income upon a
six-month average (Statement Nos. 13, 14); the conference officer en-ed in the calculation of
obligor's net income following the March 2013' conference by inaccurately multiplying her
hourly income ($27.27) to arrive at a yearly gross income (Statement No. 14(e»; and the
conference officer erred following both conferences by failing to explain how he arrived at the
, "monthly deductions" figures assigned to .obligor and used in the Support Guideline Calculation
form to detelmine the ultimate SUppOlt obligation given thatobligor'sclairiled monthly
deductions were greater than those used by the officer (Statement Nos. 14(e)(2) (July 2012);
14(e)(5) (March 2013)). Obligor asselts the conference officer's methods of SllPPOlt calculation
do not, add up as they are "masked," ((unseen," and "entirely invisible," and that this lack of
transparency is "suspicious." (Statement Nos. 14(e)(3)-(5»
To the extent obligor believed there were legal infirmities with the calculation of support
recommended by the conference officer, reduced to cowt orders on hdy 9, 2012 and March 21,
2013, her remedy was to raise all such issues by pursuing them upon de novo review and if still
dissatisfied, to further pursue them on appeal to the Superior COUli following de 110VO review.
Clearly, any issues obligor had with the firs,t two support orders issued in this case have long
been waived.
Obligor also accuses , both the Domestic Relations Section conference officer, before
whom she appeared at three conferences, as well as this court, of treating her differently. ,
(Statement No. 10) She claims that her transgendel' identity has prejudiced Domestic Relations
Section staff and ~he couit against her in all proceedings to date and that she has been
discriminated against and marginalized as a person. (Statement No. 11(i)-(k) As a result, she
maintains that "each and every decision, exclusion and omission has been made for the benefit of
10
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the [obligee)." (Statement No. 11(0)) It is unlikely that this court can convince obligor otherwise,
but the factual and legal issues presented, concerning the determination of obligee's monthly net
income, alleged unreported income, the allocation of support and all other issues raised, have
been decided upon the merits, totally unrelated to obligor's gender. s.
Accordingly, I entered my order December'23, 2013 from which obligor has appealed.
Apri116,2014
Date
Distribulion,'
Nichole M. \Valtel's, Esquire
(forMW) .
cw
8 This cOUl1 feeJs it necessal)' to address one particularly spurious claim raised by obligor in her
voluminous Statement of Errors concerning a comment I made at the December 18, 2013 de novo
hearing. (Statement Nos. 11 (i), 0)) At the outset of that hearing, I held a discussion with obligor's
attorney about the status of her name change litigation. Obligor's counsel advised me that obligol: was
self-represented in that proceeding, which had been assigned to another jlldge. During. the discussion, I
recalled a name change case nearly identical to CW's in which our Supreme COUl1 Ultimately granted a
name change from male to female. (Matter of McIntyre, 715 A.2d 400 (Pa. 1998»). I suggested obligor
submit that case in her name change litigation in an effolt to speed up the resolution of that action. (N.T.
2-3) In wrapping up my discussion, J concluded that I was offering such advice "must because I'm tired
of having to deal with this problem." (N.T. 3) In her Statement of ElTors, obligor views my statement as
negative commentary on tt'ansgendered persons broadly and of her in particular. (Statement Nos. 11(i),
(j» Any fair reading of the context surrounding .this comment reveals obligor's inter'pretation to be
absurd. Clearly, it was offered not as a negative comment upon obligor's gender identity but rathel' to
assist her name change etfolts. . .
11