S.T.M. v. J.N. lll ( 2018 )

J-A28004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.T.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
J.N., III :
:
Appellee : No. 1426 EDA 2017
Appeal from the Order Dated March 21, 2017
In the Court of Common Pleas of Delaware County
Domestic Relations at No(s): 2011-00392,
PACSES No. 091112286
S.T.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
J.N., III :
:
Appellant : No. 1487 EDA 2017
Appeal from the Order Entered March 21, 2017
In the Court of Common Pleas of Delaware County
Domestic Relations at No(s): 2011-00392,
PACSES NO: 091112286
BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 06, 2018
Appellant, S.T.M. (“Mother”), and Cross-Appellant, J.N., III (“Father”),
appeal and cross-appeal from the order entered in the Delaware County
Court of Common Pleas, which modified Father’s child support obligations.
We affirm.
In its opinion, the trial court fully and accurately sets for the relevant
J-A28004-17
facts and procedural history. Therefore, we have no need to repeat them.
We add certain observations from the record. The parties have been locked
in ongoing disputes over child support arrears, invoking judicial resources
time and again. The current feud stems from Father’s petition to modify the
amount of child support arrears in a March 18, 2015 support order and
Father’s challenge to increased tuition costs for the parties’ middle child,
A.N., to attend a new high school. After two days of hearings, the trial court
entered on March 21, 2017, a support order reducing the amount of Father’s
child support arrears and requiring Father to contribute to A.N.’s tuition.
Mother filed a timely notice of appeal, and Father filed a timely notice of
cross-appeal. The court ordered the parties to file respective concise
statements of errors complained of on appeal per Pa.R.A.P. 1925(b); the
parties complied.
At No. 1426 EDA 2017, Mother raises the following issues for our
review:
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
REDUCING THE CHILD SUPPORT ARREARS OF [FATHER],
BY A TOTAL OF $16,989.23 CONTRARY TO THE
APPLICABLE LAW, EVIDENCE WITHIN THE RECORD AND
ESTABLISHED POLICIES OF THE DELAWARE COUNTY
DOMESTIC RELATIONS OFFICE?
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
ORDERING FATHER TO CONTRIBUTE TO [A.N.]’S PRIVATE
SCHOOL TUITION WHERE FATHER AGREED THAT [A.N.]
COULD AND SHOULD ATTEND PRIVATE SCHOOL, [A.N.]
HISTORICALLY ATTENDED PRIVATE SCHOOL, AND FATHER
COULD AFFORD TO CONTRIBUTE TO PRIVATE SCHOOL
COSTS?
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J-A28004-17
(Mother’s Brief at 11).
At No. 1487 EDA 2017, Father raises the following issue for our
review:
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION BY MODIFYING FATHER’S CHILD SUPPORT
OBLIGATION TO INCLUDE THE TUITION OF A NEW AND
SIGNIFICANTLY HIGHER PRIVATE SCHOOL [TUITION],
WHERE THE SAME WAS NOT REASONABLE AS: (1) FATHER
WAS ALREADY PAYING FOR PRIVATE SCHOOL TUITION
FOR THE SCHOOL THAT [A.N.] CONSISTENTLY ATTENDED
SINCE KINDERGARTEN AND WAS ABLE TO CONTINUE
ATTENDING; AND/OR (2) THE COST OF THE NEW
SCHOOL’S TUITION WAS NOT REASONABLE IN LIGHT OF
THE PARTIES’ INCOME AS WELL AS FATHER’S
SIGNIFICANT DECREASE IN INCOME; AND/OR (3)
MOTHER WAS SEEKING THE CHANGE TO THE NEW
SCHOOL BUT FAILED TO MEET HER BURDEN TO SHOW A
BENEFIT TO [A.N.]; AND/OR (4) MOTHER UNILATERALLY
ENROLLED [A.N.] OVER FATHER’S OBJECTION AND IN
VIOLATION OF JOINT LEGAL CUSTODY[?]
(Father’s Brief at 1-2).
Our standard review of child 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 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.
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J-A28004-17
Krebs v. Krebs, 944 A.2d 768, 772 (Pa.Super. 2008) (quoting Mencer v.
Ruch, 928 A.2d 294, 297 (Pa.Super. 2007)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Dominic F.
Pileggi, we conclude the parties’ issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed June 22, 2017, at 17-36) (finding:
(Mother’s Issue 1) structure of arrears determination in March 18, 2015
support order demonstrates court did not intend to set arrears at
$15,235.52 or any “sum certain”; rather, court intended Domestic Relations
Office to recalculate Father’s arrears, based on retroactive support amounts
contained in March 2015 support order, status of previous arrears at time of
order, and Father’s payments under terms of any previous support
obligation; sum of $15,235.52 represents amount March 2015 order
required Father to make in initial lump sum payment toward overall support
arrears; further, this Court previously held lump sum payment of
$15,235.52 was not “sum certain”; based on foregoing, handwritten
reference in March 2015 support order to $31,566.52 in arrears is also not
“sum certain”; (Mother’s Issue 2/Father’s Issue) both parties testified
quality of Children’s education is very important; evidence demonstrated
parties recognized A.N.’s previous high school was substandard; before
Mother enrolled A.N. in another school, Father was aware A.N. had taken
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J-A28004-17
entrance exam for different school and bought A.N. study guide book; in
email to Mother, Father indicated he did not oppose sending A.N. to different
high school and noted quality and costs associated with potential new school
were important to Father; Father, however, did not participate in search for
new school; subsequently, Father failed to challenge Mother’s placement of
A.N. in new high school for several months; during search for new school
and after A.N.’s enrollment in new school, Father failed to exercise his rights
as shared legal custodian of A.N.; based on foregoing, Father’s argument
that he did not consent to Mother enrolling A.N. in new high school fails;
regarding increased tuition associated with A.N.’s new school, Father’s
earnings amounts to $210,000.00 per year; Father’s total monthly support
obligation, including tuition, is $3,682.91, approximately 32% of Father’s net
monthly income; in light of Father’s income, cost of A.N. attending new
school, and benefit to A.N. in attending new school, increase in Father’s
contribution to tuition is reasonable). The record supports the trial court’s
rationale, and we see no reason to disturb it. Accordingly, we affirm on the
basis of the trial court opinion.
Order affirmed.
-5-
J-A28004-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/18
-6-
Circulated 03/15/2018 04:40 PM
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
5� r; JtY},. C.C.P. NO. 2011-000392
Plaintiff/Appellant/Cross Appellee PACSES NO. 091112286
Superior Court No.: 1487 EDA 2017
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OPINION
PILEGGI, J. DATE: June 22, 2017
This Appeal is considered a direct appeal, and cross appeal, from this
Court's March 21, 2017 Support Order1• Appellant/Cross Appellee is Plaintiff,
("Mother"). Appellee/Cross Appellant is Defendant,
("Father"). Mother and Father seek review of this Court's March 21, 2017 Support
Order, which provided for an order of child support payable by Father to Mother,
on behalf of two (2) minor children, J.N. and A.N. ("the children"). On appeal,
Mother raises the following issues:
1. Did this Court err in finding that Father's Income for 2017 is only
comprised of his base salary of Two Hundred Ten Thousand Dollars
($210,000.00) and is not comprised of any "bonus" income?
1
On March 21, 2017, this Court contemporaneously flied Findings of Fact and Conclusions of Law in support of its
Support Order.
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2. Did this Court err in its interpretation its prior Support Order of March
17, 2015 with respect to the determination of total arrears owed as of
March 17, 2015?
Defendant/Appellee/Cross Appellant Father filed a cross appeal of this
Court's March 21, 2017 Support Order. In his cross appeal Father raises the
following issue:
1. Did this Court err in finding that Father is responsible for contribution
towards the child A.N.'s private school tuition, with respect to the child's
enrollment at the Country Day School of The Sacred Heart?
PROCEDURAL HISTORY
On or about March 18, 2016, Father filed a Petition to Modify Support in
the Pennsylvania Court of Common Pleas of Delawar� County, Office of Domestic
Relations. This Court held a hearing, which commenced on January 4, 2017,
continued to a second day, and concluded on January 9, 2017.
On March 21, 20 l 7 a Support Order was entered by this Court. This Court's
Support Order contained, inter alia, the following obligations for support, payable
. from Father to Mother on a monthly basis:
1. Effective March l 8, 2016 to September 1, 2016: Four Thousand Sixty-
One Dollars and Thirty Cents ( $4,061.30) per month. ( See 3/21/17
Support Order, at ,r 135).
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2. Effective September 1 • 201 6 to December 31 • 201 6: Four Thousand Eight
Hundred Seventy-Four Dollars and Seventy-Four Cents ($4,874.7 4) per
month. (See Id at 1J 136).
3. Effective January 1_, 2017: Three Thousand Six Hundred Eighty-Two
Dollars and Ninety-One Cents ($3,682.91) per month. (See Id at 1J 137).
4. Credit to Arrears: Following the recalculation of arrears in accordance
with the bifurcated order contained herein, Delaware County Domestic
Relations is ordered to CREDIT Defendant in the amount of Fifteen
Thousand Two Hundred Thirty-Five Dollars and Fifty-Two Cents
($15,235.52). In addition, Domestic Relations shall CREDIT Defendant
another One thousand Seven Hundred Fifty-Four Dollars and Eleven Cents
($1,754.11) in accordance with Paragraphs 123- 134 above.2 Therefore
a total of Sixteen Thousand Nine Hundred Eighty-Nine Dollars and Sixty-
Three Cents ($16,989.63) shall be credited to Father's arrears. This
amount shall be applied so as to reverse the added arrears applied by
Domestic Relations on October 21 and October 22, 2015, in accordance
with its second interpretation of Judge Coll's March 17, 2015 Order, an
interpretation which this Court finds to be erroneous. (Emphasis in Original)
(See Id at 1J 140).
z In paragraphs 123-134 of Its March 21, 2017 Support Order, this Court explained its rationale for its
interpretation of the March 17, 2015 Support Order. (See 3/21/17 Support Order at ,i 123-134).
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On April 20, 2017 Mother filed a Notice of Appeal. On May 2, 2017, this
Court ordered Mother to provide a Concise Statement of Matters Complained of on
Appeal pursuant to Pa. R.A.P. l 925(b). On May 3, 2017, Father filed a Notice of
Cross Appeal. On May 10, 2017, this Court ordered Father to provide a Concise
Statement of Matters Complained on appeal pursuant to Pa. R.A.P. J 925(b). On
May 23, 2017, Mother filed a Concise Statement of Matters Complained of on
Appeal. On May 31, 2017, Father filed a Concise Statement of Matters
Complained of on Appeal.
FACTS
Appellant/Cross Appellee is. 5., /, /11. . {"Mother") who resides at 2922
Copper Beech Lane, Secane, Upper Darby Township, Delaware County, PA 19018.
See Ex. P-1. Mother graduated from Wharton School of Business in 2000 with her
degree in Business Management. N. T. I/4/17, at 139 1 2-18. After she met and
married Father, she was a stay at home mom for three (3) or four (4) years and
then worked part time as a tax preparer. Id at 139 ,r 2-1 8. In 2009 she attended
Temple University Law School and earned her Juris Doctorate in 201 3. Id Mother
currently assists individuals in filing their federal and state tax returns. In her tax
preparation practice, Mother has approximately one hundred and fifty (150) to
two hundred (200) clients. Id at 139-140. Mother is also the principal owner of a
law practice. In connection with her law practice, Mother represents clients, mainly in
the areas of tax and estate law. Id at 140-143.
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Mother's income proved to be � difficult fact to ascertain, mainly due to her
contradictory and inconsistent testimony. Had Mother's background not consisted of
an Ivy league education and her employment experience not consisted of
managing her own law practice as well as her own tax preparation practice, this
Court may attribute Mother's poor credibility to being ill-prepared and inept.
However, given Mother's perceived intelligence and her keen ability to effectively
cross examine Father with respect to his income and assets, this Court, in its Findings
of Fact and Conclusions of law filed contemporaneously with its Support Order of
March 21, 2017, characterized Mother's credibility, with respect to her income, as
"at best, cagey and evasive." See 3/21/17 Support Order, at 1J 89. This Court
highlights Mother's lack of credibility with respect to her income as follows:
Mother at first testified that she did not know her earnings for 2016 and did
not bring any income information or any other documentation reflective of her
income to Court on the day of the hearing, a fact for which she attempted to blame
Father's attorney due to a failure of Father's attorney to "request discovery." N. T.
l/4/17, at 92-96. However, she was then presented with this Court's Order of
December 9, 2016, which had scheduled the hearing on the matter. Father's counsel
reviewed this Court's December 9, 2016 Order with Mother, which stated in
relevant part, "at this hearing all parties must be present and prepared to present
testimony and/or documents and argument." Id. at 961f 5-10.
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Mother then attempted to evade questions posed by Father's counsel and
stated that "according to the support order," she was assessed an income of One
Thousand Five Hundred Dollars ($1,500.00) per month, which Mother agreed is
equivalent to Eighteen Thousand Dollars ($18,000.00) per year. Id. at 98-99.
Before that, Mother had testified that her income was approximately Two Thousand
and Fifty Seven Dollars ($2,057.00) per month. Id. at 9711' 19-24. Mother testified
that she recently purchased a new home. Id. at 1 00 1J 4-6. Mother was presented
with a loan application that she had completed in order to finance the purchase of
a new home in 2015. Mother indicated on the loan application document that her
monthly income was Three Thousand Five Hundred Thirty Eight Dollars ($3,538.00)
per month. Id. at 101 1J 6-15; See Ex. D-6. Mother testified that she owns another
piece of real property. She stated that she applied for a loan to refinance that
property on June 10, 2015. Mother stated that on her application, she represented
her annual salary to be Forty Four Thousand Dollars ($44,000.00). Id. at 1021f 8-
19; Ex. D-7. Mother further stated that this amount was her gross pay prior to
payment of taxes. N. T. 1/4/17, at 1 091f 6-15. After testifying that she did not
have any documentation representative of her income, Mother testified that she
actually brought her 2015 tax returns to court. Id. at 112-113; Ex. P_-1.
Appellee/Cross Appellant is �M ("Father") who resides in the City
of Atlanta, Fulton County, Georgia. N. T. 1/4/17, at 151'J 11-15. Father holds a
Bachelor's Degree in Economics from the University of Pennsylvania and a Master's
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of Business Administration from The University of Pennsylvania, Wharton School. Id.
at 77-78. Father is currently employed with Herndon Capital Management
("Herndon"), with a base salary of Two Hundred Ten Thousand Dollars
($210,000.00). Id. at 15-16. In previous years, Father also received an annual
bonus. However, that bonus is not guaranteed. It is based on the previous year's
productivity and resulting revenue generated by Herndon. See Id. at 16-22; 52.
Father testified that he began employment with Herndon in June of 2011. Id.
at 15 ,I 19-21. When he was hired in 2011, his title was Senior Investment Analyst.
Since 2011 he has been promoted three (3) or four (4) times, with the most recent
promotion being in January of 2016. Id. at 47-48. His current title is Deputy Chief
Investment Officer. Id Father's yearly income for 2014 was over Five Hundred
Thousand Dollars ($500,000.00). Id. at 73. Father's yearly income for 2015 was
approximately Four Hundred Fifty Thousand Dollars ($450,000.00). Id. Father's
yearly income for 201 6 was approximately Three Hundred Seventy Eight Thousand
Dollars ($378,000.00). Id.; Ex. D-1. Father testified that his income for 2017 will
only consist of his base salary of Two Hundred Ten Thousand Dollars
($210,000.00). Father testified that he will not receive a bonus in 2017. Id. at 18-
21.
With respect to his assets and expenses, Father purchased a new property
two and a half (2V2) years ago. The purchase price of the property was Four
Hundred Thousand Dollars ($400,000.00). Id. at 49 ,I 1-13. Father testified that
-
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over the course of the last year and a half, a home has· been being constructed,
and that "the final mortgage amount may be Six Hundred Forty Thousand Dollars
($640,000.00)." Id at 4911 17 - 19. Father testified that his housing expenses are
greater now than they were before the purchase of the new home. Id at 51 11 21-
22.
Father and Mother are the parents of two (2} minor children, A.N., aged
fifteen (15) at the time of the hearing, and J.N., aged thirteen (13) ct the time of
the hearing ("the children"). Id at 25 111-4. The parties are also the parents of one
( 1 ) emancipated child. Id cit 86-87. The child J.�. is in seventh grade. J.N. attends
a private school in Philadelphia known as The City School. He has attended The City
School since kindergarten. Id at 25 11 7-1 0. · ·
The child A.N. attended The City School from kindergarten through eighth
grade. Id at 251J 18-19. As of the date of the hearing, A.N. is in the ninth grade.
A.N. entered the ninth grade at the commencement of the 2016-17 school year. At
the commencement of the 201 6- 17 school year, A.N. began attending The Country
Day School of the Sacred Heart ("Sacred Heart"). See Id. at 2511 11- 1 6.
According to Father, the reason A.N. attends Sacred Heart instead of The City
School is because Mother unilaterally removed A.N. from The City School and
enrolled her in Sacred Heart. Father claimed that this was done without his
knowledge or consent. Id at 25 1l 5-24. Despite the parties sharing joint legal
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custody of the children, Father stated that he was unaware of Mother's unilateral
decision to enroll A.N. in Sacred Heart. Id. at 25-34.
A.N.'s removal from The City School after the conclusion of her eighth grade
school year and subsequent enrollment Into Sacred Heart gave rise to a dispute
concerning Father's obligation to contribute to Sacred Heart's tuition payments.
Mother osserted, and Father contested, that he was responsible for any of Sacred
Heart's tuition. Tuition for attendance at Sacred Heart is higher than tuition for The
City School. Father and Mother agreed that the tuition for The City School is Eight
Thousand Four Hundred Seventy Dollcrs ($8,470.00} per child. Id at 37,I 20-24;
Ex. D-4. If both children were enrolled in The City School for the school year of
2016-17, the total tuition would have been Fifteen Thousand Nine Hundred Forty
Dollars ($15,940.00).3 Id. at 38 ,I 17-21; Ex. D-4.
The tuition for A.N.'s attendance at Sacred Heart Is Eighteen Thousand Six
Hundred Eighty-Nine Dollars and Eighty Cents ($18,689.80)4 per year. Ex. P-2.
Therefore, the total yearly tuition for both children, with A.N. attending Sacred
3
The tuition amount is Eight Thousand Four Hundred Seventy Dollars ($8,470.00) per child, which for two (2)
children would amount to Sixteen Thousand Nine Hundred Forty Dollars ($16,940.00). However, there is a One
Thousand Dollar ($1,000.00) discount for having two (2} children enrolled in The City School. Therefore, the total
amount for tuition for both A.N. and J.N. amounts to Fifteen Thousand Nine Hundred Forty Dollars ($15,940.00).
N. T. 1/4/17, at 41 ,i 21-25; Ex. D-4.
4Mother
had testified that A.N.'s tuition for Sacred Heart is Eighteen Thousand Eight Hundred Eighty Five Dollars
($18,885.00}. td. at 147 ,i 1-16. On January 9, 2017, when the parties reappeared to conclude the proceeding,
Mother brought an invoice for Sacred Heart tuition, and corrected her prior testimony. Mother stated that the
tuition "was actually a few hundred dollars less" than what she had previously stated. N. T. 1/9/17, at 10 ,i 14-19.
The tuition statement was introduced as Ex. P-2 and indicated that the total tuition Is Eighteen Thousand Six
Hundred Eighty-Nine Dollars and Eighty Cents ($18,689.80). Ex. P-2.
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Heart, and J.N. attending The City School, is Twenty-Seven Thousand One Hundred
Fifty-Nine Dollars and Eighty Cents ($27, 159.80). See Ex. D-4; See also Ex. P-2.
DISCUSSION - MOTHER'S APPEAL
Mother raises the following issues on appeal:
1. Did this Court err in finding that Father's yearly Income for 2017 was
not Inclusive of any extra Income beyond hts base salary of Two
Hundred Ten Thousand Dollars ($21 0,000.00)i
Mother alleges that this Court erred in concluding that Father's income for
2017 consisted only of his base salary of Two Hundred Ten Thousand Dollars
($2 l 0,000.00). Mother alleges that this Court erred in its determination to exclude
extra income from a yearly bonus that Father hos received in previous years, based
upon this Court's reliance on Father's testimony as well as documentation from
Father's employer which indicated that he will not be receiving a bonus in 201 7. In
her Concise Statement of Matters Complained of on Appeal, Mother alleges that
this Court erred in its reliance upon Father's testimony and its reliance "on a self-
serving letter written by one of Father's peers within his company and which had not
been available on the first day of trial and only was when a second day of trial
became necessary." (See Mother's Concise Statement of Matters Complained of on
Appeal at ,r 2).
Pursuant to 23 Pa. CS.§ 4302and Pa. R.CP. No. 1910.16-2(a}, income
"includes compensation for services, including, but not limited to, wages, salaries,
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bonuses, fees, ... and any form of payment due to and collectible by an individual
regardless of source." Id (Emphasis added).
The petitioner requesting modification of a support order has the burden of
demonstrating a change in circumstances which warrant the requested modification.
See 23 Pa.CS.§ 4352(a). If the trier .of fact finds that there has been a material
and substantial change in circumstances, the support order may be increased or
decreased depending upon the respective incomes of the parties, consistent with the
support guidelines and existing law, and each party's custodial time with the child
at the time the modification petition is heard. See Pa. R.CP. No. J 910. J 9(c). The
trial court, in determining whether modification of a child support order is
warranted, must consider all pertinent circumstances and base its decision upon facts
appearing in the record which indicate that the moving party did or did not meet
the burden of proof as to changed conditions. See Mackay v. Mackay, 984 A.2d
529 (Pa. Super. Ct. 2009). When the alleged change in circumstances is based
upon a reduction of income the Court may not order a reduction unless the
petitioner has proved by competent evidence a material and substantial change in
his financial circumstances. See Commonwealth ex rel De/baugh v. Delbaugh, 392
A.2d 717, 718 (Pa. Super. 1978). See also Shuster v. Shuster, 323 A.2d 760, 761
(Pa. Super. 1974);
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Furthermore, when one party is seeking modification of a support order due
to an alleged reduction of income, this Court notes the applicability of the following,
pursuant to Pa. R.CP. 1910.16-2(d}.
(d) Reduced or Fluctuating Income.
(1) Voluntary Reduction of Income. When either party voluntarily
assumes a lower paying job, quits a job, leaves employment, changes
occupations or changes employment status to pursue an education, or is
fired for cause, there generally will be no effect on the support
obligation.
(2) Involuntary Reduction of, and Fluctuations in, Income. No
adjustments in support payments will be made for normal fluctuations
in earnings. However, appropriate adfustments will be made for
substantial continuing Involuntary decreases In Income, Including but not
limited to the result of illness, lay-off, termination, fob ellmtnatton or
some other employment situation over which the party has no control
unless the trier of fact finds that such a reduction in income was willfully
undertaken in an attempt to avoid or reduce the support obligation.
Pa. R.CP. No. 1910.16-2(d) (Emphasis added).
In determining a child support obligation, the trier of fact is entitled to weigh
the evidence presented and assess its credibility. McClain v. McClain, 872 A.2d
856, 862 n. 1 (Pa. Super. 2005). The assessment of the credibility of witnesses is
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within the sole province of the trial court." Brotzman-Smith v. Smith, 650 A.2d 471,
474 {Pa. Super. 1994).
Furthermore, when making its determination with respect to an alleged
reduction of income, this Court notes that it must weigh evidence, beyond the
Petitioner's actual earnings, to the nature and extent of the Petitioner's property
and investments, and to his standard of living, when making a determination as to
whether the Petitioner has met his burden to prove a reduction in income. See Banks
v. Banks, 418 A.2d 1370, 1375 (Pa. Super. 19BO)(citing, Weiser v. Weiser, 362
A.2d 287 (Pa. Super. 1976) and Shuster v. Shuster, 323 A.2d 260 (Pa. Super.
1974)).
This Court carefully weighed the credibility of the evidence and testimony
presented during the January 4 and January 9, 2017 hearings on this matter. This
Court determined that Father testified credibly with respect to his income. Father's
testimony was supported by documentation from his employer, which was admitted
into evidence, and which was uncontroverted. In accordance with the testimony and
evidence provided, this Court found that Father, as the Petitioner in this matter, met
his burden to demonstrate an involuntary reduction in income, which this Court found
to be a substantial change in circumstance necessary to warrant modification of his
support obligation. Specifically, this Court found that credible evidence and
testimony demonstrated the following facts:
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a) Father has been employed with Herndon Capital Management ("Herndon")
since 2011. When he was hired in 2011, his title was Senior Investment
Analyst. Since 2011 he has been promoted three (3) or four (4) times, with
the most recent promotion being in January of 2016. His current title is
Deputy Chief Investment Officer. N.T. 1/4/17, at 47-48.
b) Each year of his employment, Father is paid a base salary plus a bonus, paid
in March of each year. Although Father has received a bonus in each year
since his employment with Herndon, the bonus is not guaranteed. The amount
Father's bonus is based on amount of revenue generated by Herndon from
the previous year. For example, Father's bonus of One Hundred Sixty-Eight
Thousand One Hundred Thirteen Dollars ($168, 113.00) was paid to him in
March of 2016. However, it was based on revenue generated by Herndon in
2015. Id. at 16-1 9.
c) Father's yearly income for 2014 was over Five Hundred Thousand Dollars
($500,000.00). Id. at 731f l 9-20.
d) Father's yearly income for 2015 was approximately Four Hundred Fifty
Thousand Dollars ($450,000.00). See Id at 73 ,r 10-14.
e) Father's yearly income for 2016 was approximately Three Hundred Seventy
Eight Thousand Dollars ($378,000.00). Id. at 73 � 1 5-17).
f) During the year 2016, Herndon experienced "difficult times." The company
has laid off approximately half of its employees. During 2016, Herndon
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went from approximately fifty (50) employees to approximately twenty-two
(22) or twenty-three (23) employees. Id at 18-19.
g) Father has concerns about the security of his job and testified that Herndon is
not paying bonuses in an effort to avoid further layoffs. Id. at 21-22.
h) Father's income for 2017 will only consist of his base salary of Two Hundred
Ten Thousand Dollars ($210,000.00). Id. at 19-21; Ex. D-11.
i) Documentation, submitted from Father's employer, which was admitted into
evidence, verified that Father will not be receiving any additional income
beyond his base salary of Two Hundred Ten Thousand Dollars ($210,000.00)
"due to the company's financial status." See Ex. D� T 1.
Based on the findings summarized above, this Court concluded that Father
had met his burden to demonstrate a change In circumstance, specifically a
reduction of income. Furthermore, Father had sufficiently demonstrated that his
reduction of income was involuntary and non-fluctuating in accordance with the
standards prescribed under Pa. R.CP. No. 1910. l 6-2(d).
In addition, in evaluating whether Father had met his burden to demonstrate
a reduction in income, this Court also considered points raised in Mother's cross-
examination regarding changes in Father's expenses and debt burden. See Banks v.
Banks, 418 A.2d 1370 (Pa. Super. 1980). Specifically this Court considered the
following:
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a) In 2014, Father purchased a lot in order to build a new home. The cost of
that property was Four Hundred Thousand Dollars ($400,000.00). N. T.
1/4/17, at 491f 9-13; See also 3/21/17 Support Order, at 1f 17-20.
b) Over the last year and a half, a home has been built on that property.
The final balance of a mortgage that Father has on the property "may be
Six Hundred Forty Thousand Dollars ($640,000.00)." N. T. l/4/17, at 49
1f l 7- l 9; See also 3/21/17 Support Order, at 1f l 7-20.
c) Father's expenses with respect to housing are greater after the purchase
of the new home than they were before the purchase of the new home. Id
at 51 1f 21-22.
d) No evidence indicated that Father's assets, expenses, or standard of living
were greater than that which could be sustained by Father's gross income
of Two Hundred Ten Thousand Dollars {$210,000.00) per year, which
equates to a gross income of Seventeen Thousand Five Hundred Dollars
($17,500.00) per month, which this Court calculated to be Eleven
Thousand Five Hundred Forty One Dollars and Forty Cents ($11,541.40)
in net monthly income. See 3/21/17 Support Order, at 1f 83.
e) No evidence indicated that Father has any additional assets, the financial
maintenance of which requires income greater than the calculated net
monthly income of Eleven Thousand Five Hundred Forty One Dollars and
Forty Cents ($11,541.40). See Id
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f) No evidence indicated that Father has any additional expenses which
would exceed the calculated net monthly Income of Eleven Thousand Five
Hundred Forty One Dollars and Forty Cents ( $1 l ,541 .40).
Therefore, this Court concluded, that even in light of Mother's cross
examination relating to Father's assets, income, standard of living, and expenses,
Father had met his burden to show a reduction of income, and that for 2017, his
income will be comprised only of his base salary of Two Hundred Ten Thousand
Dollars ($210,000.00).
2. Did thls Court err in its Interpretation of the arrears provision of Its
March 17, 2015 Order,
Mother alleges in her Concise Statement of Matters Complained of on
Appeal that this Court erred "by arbitrarily reducing the child support arrears of
Defendant ... by $16, 989 .23 contrary to applicable law, evidence within record,
and established policies of the Delaware County Domestic Relations Office." (See
Mother's Concise Statement of Matter's Complained of on Appeal, at 1{ 1 ).
A trial court is entitled to great deference in the interpretation of its own
orders. "Appellate review of a trial court's actions relies heavily upon the sound
discretion of the trial judge. Reversal occurs only in the event that a clear abuse of
the trial court's discretion is evident." Commonwealth v. Lebo, 713 A.2d 1158,
1161-62 (Pa. Super. 1998); (quoting, Commonwealth v. Restauri, 664 A.2d 593,
596-97 (Pa. Super. 1995)). This is especially true when an appellate court reviews
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a trial court's interpretation of Its own orders in an area· particularly assigned to the
court's discretion. Commonwealth v. Lebo, 713 A.2d 1158, 1162 (Pa. Super. 1998}
(citing Equipment Finance, Inc. v. Toth, 476 A.2d 1366 (Pa. Super. 1984}
(explaining the great deference given trial courts in interpretation of their own
rules).
With respect to interpretation by the Court of another Judge's Order,5 the
Pennsylvania Superior Court has made It clear that the court is bound by the words
of the order itself, supplemented, if at all, only by statements or documents of
record at the time the order was made. Commonwealth ex rel Brennan v. Brennan,
195 A.2d 150, 151 (Po. Super. 1963).
In the instant matter, interpretation of this Court's March 17, 2015 Order of
Support ("201 5 Support Order")6 was called into question. The 2015 Support
Order provides, inter alia, the following relevant provisions:
Amount of Support:
1. Effective January 1, 2012 through to December 31, 2012, and based upon
[Mother's] net monthly income of $2, 123 and [Father's] net monthly income of
5
This Court's March 17, 2015 Order of Support was entered by the Honorable Michael F.X. Coll of the Delaware
County Court of Common Pleas. This Court's March 21, 2017 Support Order, which contained a provision
addressing its interpretation of the March 17, 2015 Order of Support, was entered by the Honorable Dominic F.
Pileggi of the Delaware County Court of Common Pleas.
6
This Court notes that the Prior Support Order was subject to an appeal filed by Mother and a cross appeal flied by
Father. The appeal and cross appeal were filed in The Superior Court of Pennsylvania, under the caption: .S, T, /11
r(F/K/A: 5,(11, 1)Appellant,v.: :f,N, °}.Appellee,_?,f.'JYI .. rJ.£1.YjA: fi,/V,
v.
Appellee. James Nelson. Appellant. and were docketed in the Superior Court of Pennsylvania, under Docket
Numbers 1085 EDA 2015, and 1330 EDA 2015.
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$10,421, a monthly order of Support shall be payable by the [Father] to the
[Mother] as follows:
Child Support $2, 116.50
2. Effective January 1, 2013 through to December 31, 2013, and based upon
[Mother's] net monthly income of $2,425 and [Father's] net monthly income of
$14,362, a monthly Order of Support shell be payable by the [Father] to
the [Mother] as follows:
Chlld Support $2,721.57
3. Effective January 1, 2014 through to December 31, 2014, and based upon
[Mother's] net monthly income of $2,955 and [Father's] net monthly income of
$25,689, a monthly Order of Support shall be payable by the [Father] to
the [Mother] as follows:
Child Support $3,704.86
4. Effective January 1, 2015, and based upon [Mother's] net monthly income of
$2,955 and [Father's] net monthly income of $25,689, a monthly Order of
Support shall be payable by the [Father] to the [Mother] as follows:
a. Child Support (based on [Father's]
Base Salary) $1,982.16
b, Child Support (based on [Father's] Bonus; 50% of Difference
between the obligation with bonus and the obligation due to
base salary only) $711.65
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Sub-Total Per Month $2,693.81
d. Ordered on Arrears (OOA},
applicable $269.00
Total Per Month $2,962.81
( 3/17/15 Order of Support, at 1-2) (Emphasis in Original).
Additional Terms:
1. Tuition - 2012 through 2014/2015 school year. The parties have stipulated
that [Father] owes [Mother] the sum of $16,331, representing [Father's] share
of the children's tuition (The City School and Church Farm School) from 2012
through the end of the 2014/2015 school year. This sum shall be added to
the arrears owed to [Mother]. [Mother] is responsible to ensure that both
schools are paid up to and including the 2014/2015 school year.
( 3/17/15 Order of Support, at 4 ,r 1 )(Emphasis in Original).
4. Arrears: Due to the retroactive nature of the within Order, as well as the
anticipated arrears owed to [Mother] as a result, within thirty (30) days, [Father]
shall make a lump sum payment towards the arrears in the amount of
$15,235.52. This payment SHALL be made through PACSES.
( 3/17/15 Order of Support, at 5 1f 4)(Emphasis in Original)
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Following the above recited provisions, a handwritten provision is inserted
which reads:
"Total arrears of support plus tuition are $31,566.52. MFX Coll 3-17-15."
{Id) (Emphasis added).
Interpretation of the 2015 Support Order, with respect to the amount of
arrears owed by Father to Mother, gave rise to a dispute between the parties. The
dispute concerns two (2) different and conflicting interpretations:
First Interpretation: $31,566.52 IS NOT a sum certain of calculated arrears.7
Second Interpretation: $31,566.52 IS a sum certain of calculated arrears.8
This Court concluded that the First Interpretation was correct. Fundamentally,
this Court concluded that the $31,566.52 figure is the result of adding the fifteen
Thousand Two Hundred Thirty-Five Dollar and Fifty-Two Cent ($15,235.52) figure
specified as "a lump sum payment" that Father is to make "towards anticipated
7
This Court's review of Ex. D-8 indicates that, Domestic Relations implemented the March 17, 2015 Order on
March 20, 2015 in accordance with the First Interpretation. Domestic Relations re-calculated the arrears balance in
accordance with the retroactive application of support amounts specified on pages one (1) and two (2) the Order.
(See 3/17/15 Order of Support, at 1-2). The re-calculated arrearage total was NOT Fifteen Thousand Two Hundred
Thirty-Five Dollars and Fifty-Two Cents ($15,235.52) (the lump sum payment of anticipated arrears ordered by
Judge Coll on March 17, 2015 to be paid by Father to Mother). See 3/17/15 Order of Support, at 5 ,i 4; See also Ex.
0-8. Instead, review of Ex. D-8 indicates that there was NO arrears balance, but that Father in fact had a credit in
the amount of One Thousand Seven Hundred Fifty-Four Dollars and Eleven Cents ($1,754.11). See N. T. 1/9/17, at
47 � 11-15; see also Ex. 0-8.
8
On October 21-22, 2015, Domestic Relations implemented the Second Interpretation based upon a phone call
made from an unidentified individual. In accordance with the Second Interpretation, Domestic Relations added
One Thousand Seven Hundred Fifty Four Dollars and Eleven Cents ($1,754.11), which essentially offset the credit
that was calculated in accordance with the First Interpretation. See N. T. 1/9/17, at 62 1112-23. Another adjustment
was made to add Fifteen Thousand Two Hundred Thirty Five Dollars and Fifty-Two Cents ($15,235.52) on to
Father's arrears balance. Because the tuition amount of Sixteen Thousand Three Hundred Thirty One Dollars
($16,331.00) was already added to Father's arrears on March 20, 2015, the addition of the $15,235.52 essentially
set Father's total arrearage at $31,566.52 in accordance with the handwritten provision contained in Judge Colt's
March 17, 2015 Order. Id. at 63 ,i 17-23. '
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arrears," according to the provision on page 5, paragraph 4, and the Sixteen
Thousand Three Hundred Thirty-One Dollar { $16,331.00} figure specified as tuition
payments "added to the arrears owed to Mother," according to the provision on
page 4, paragraph 1. (See 3/17/15 Order of Support, at 51f 4; 41f 1 ).
This Court concluded that the $15,235.52 figure was NOT intended to be a
sum certain of calculated arrears for the years of 2012, 201 3, and 2014. Because
the Fifteen Thousand Two Hundred Thirty-Five Dollar and Fifty-Two Cent
( $15,235.52) figure is not a sum certain of colculoted arrears, the resulting Thirty
One Thousand Five Hundred Sixty-Six Dollars and Fifty-Two Cents ($31,566.52),
derived from its addition to the tuition amount, is also not a sum certain of
calculated arrears. This Court's reasoning is as follows:
First, the Superior Court hos already provided an interpretation of the
Fifteen Thousand Two Hundred Thirty-Five Dollar and Fifty-Two Cent ($15,235.52)
figure. As stated herein, the 2015 Support Order was subject to on appeal filed by
Mother and a cross appeal filed by Father in the Superior Court of Pennsylvania.
See S;T;t,1, v,U:IY'. 2016 WL 1604389 (Pa. Super. 2016). In her appeal Mother
contended that this Court erred by determining that the "total outstanding child
support owed for the years 2012, 2013, and 2014 is $15,235.52." Id at 18
( citing Mother's Brief, at 17). The Superior Court held that Fifteen Thousand Two
Hundred Thirty-Five Dollars and Fifty-Two Cents ($15,235.52) was not a sum
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certain of calculated arrears for 2012, 2013, and 2014. In support of its holding,
the Superior Court stated:
We conclude Mother misconstrues the trial court's order ...the Order
provides, "[djue to the retroactive nature of the within Order, as well
as the anticipated arrears owed to [Mother], as a result, within Thirty
(30) days, [Father] shall make a lump sum payment towards arrears in
the amount of $15,235.52 ... "
Thus, contrary to Mother's assertion, the trial court did not "determin[e]
that the actual amount of child support due and owing to [Mother] is
only $15,235.52 ... " Rather the trial court determined that
$15,235.52 was the amount to be payable as an initial lump sum.
Accordingly, we conclude Mother's claim is based on a misreading of
the order and is therefore meritless .
.5.7.M, vq-:t N',, 2016 WL 1604389, 18-19 (Pa. Super. 2016).
Secondly, in support of this Court's interpretation as well as that of the
Superior Court, this Court notes the language of the 2015 Support Order itself:
Due to the retroactive nature of the within Order, as well as the
anticipated arrears owed to [Mother] as a result, within thirty
(30) days, [Father] shall make a lump sum payment towards the
arrears in the amount of $15,235.52.
(3/17/15 Order of Support, at 5 ,I 4)(Emphasis Added).
As gleaned from the plain language of the 201 5 Support Order, Fifteen
Thousand Two Hundred Thirty-Five Dollars and Fifty-Two Cents ($15,235.52) is not
a sum certain of calculated arrears. It is "a lump sum payment towards the arrears"
that Father was to pay. The purpose of the Fifteen Thousand Two Hundred Thirty-
Five Dollar and Fifty-Two Cent ($15,235.52) lump sum payment was due to the
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retroactive nature of the 2015 Support Order and the anticipated arrears resulting
therefrom.
Thirdly, in accordance with the retroactivity of the 2015 Support Order, it is
the task of Domestic Relations to re-calculate the arrears to account for Father's
prior payments made in relation to the retroactively applied support obligation.
See Miller v. Nelson, 2016 WL 1604389, 19, n.12 (Po. Super. 2016); (citing,
3/7 7/15 Order of Support at 2)9; See also N. T. 1/9/7 7, at 18-21. This Court
relies on the computer program utilized by Domestic Relations to accomplish this
task and make the re-calculations accurately and efficiently. See N. T. l/9/17, at
18-23. In accordance with this understanding, this Court noted that pages one (1)
and two (2) of the 201 5 Support Order diligently provided for a support
obligation that was bifurcated into four (4) parts, and applied retroactively to
January 1, 2012. The 2015 Support Order provided for four (4) specific dollar
amounts of monthly support correspondent to the four (4) different time periods
provided in the Order. See 3/17/15 Order of Support, at 1-2}. This Court
concluded, as did the Superior Court, that Judge Coll would not have issued an
Order that was bifurcated into four (4} parts, with a specific support amount
correspondent to each of four (4} time periods, if he intended for the arrears to be
9
This Court notes that in footnote 12 of its Opinion, the Superior Court specifically stated that "the actual
arrearage amount is determinable by the Domestic Relations Office (ORO} based on the order, the status of any
previous arrears at the time of the order, and the subsequent history of payments through the Pennsylvania
Automated Child Support Enforcement System. Such arrears will be subject to paragraph 4. [d.J on page 2 of the
child support modification order." .5, "!;M • .;; ,T, N. 2016 WL 1604389, 19, n.12 (Pa. Super. 2016).
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set at Fifteen Thousand Two Hundred Thirty-Five Dollars and Fifty-Two Cents
( $15,235.52) or any other sum certain. This Court concluded that the intention of the
201 5 Support Order was to provide for the arrears to be re-calculated by
Domestic Relations based on the support amounts set forth in the Order, the status
of any previous arrears at the time of the Order, and history of payments made by
Father under the terms of any previous support obligation. ( See Miller v. Nelson,
2016 WL 1604389, 19, n.12 (Pa. Super. 2016).
Because this Court concluded that the Fifteen Thousand Two Hundred Thirty-
Five Dollar and Fifty-Two Cent ($15,235.52) figure was not intended to be a sum
certain of calculated arrears owed to Mother, the handwritten reference to the
amount of Thirty-One Thousand Five Hundred Sixty-Six Dollars and Fifty-Two Cents
($31,566.52) is also not a sum certain of calculated arrears owed to Mother.10
10
In accordance with its finding that the $31,566.52 was not Intended to be a sum certain of total arrears owed as
of March 17, 2015, this Court's Support Order of March 21, 2017 provided for Domestic Relations to CREDIT Father
in the amount of Fifteen Thousand Two Hundred Thirty-Five Dollars and Fifty Two Cents ($15,235.52). In addition,
Domestic Relations was ordered to credit Father another One thousand Seven Hundred Fifty-Four Dollars and
Eleven Cents ($1,754.11). A total of Sixteen Thousand Nine Hundred Eighty-Nine Dollars and Sixty-Three Cents
($16,989.63} was ordered to be credited to Father's arrears. This amount was credited In order to reverse the
added arrears applied by Domestic Relations on October 21 and October 22, 2015, In accordance with its second
Interpretation of Judge Coll's March 17, 2015 Order, an interpretation which this Court found to be erroneous.
(See 3/21/17 Support Order, at ,i 140).
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DISCUSSION - FATHER'S CROSS APPEAL
Father raises the following issue in his cross-appeal:
1. Did this Court err In its determination that Father is responsible for
contribution to the tuition for the· parties' child A.N. to attend The Country
Day School of the Sacred Heartt
Father alleges, in his Concise Statement of Matters Complained of on
Appeal, that this Court erred in its determination that Father should be responsible
for contribution to the tuition payments in connection with the child A.N's enrollment
in the Country Day School of the Sacred Heart ("Sacred Heart"). Specifically,
Father's Statement of Matters Complained of on Cross-Appeal requests review of
one ( 1 ) issue, stated by Father as follows:
Whether the Trial Court erred and/or abused its discretion by
modifying Father's child support obligation to include the tuition
of a new and significantly higher private school, where the same
was not reasonable as (1) Father was already paying for
private school tuition for the school that the child consistently
attended since kindergarten and was able to continue
attending; and/or (2) the cost of the new school's tuition was not
reasonable in light of the parties' income as well as Father's
significant decrease in income; and/or (3) Mother was seeking
the change to the new school but failed !O met (sic} her burden
to show a benefit to the child; and/or (4) Mother unilaterally
enrolled the child over Father's objection and in violation of joint
legal custody.
Mother's Concise Statement of Matters Complained of On Appeal, at
,I 1.
This Court notes the appellate standard of review with respect to child
support matters:
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When evaluating a support order, [the Superior Court] may only
reverse the trial court's determination where the order cannot be
sustained on any valid ground. [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 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, [the Superior Court] note[s] that the duty to
support one's child is absolute, and the purpose of child support is to
promote the child's best interests.
Gibbons v. Kugle, 908 A.2d 916 (Pa. Super. 2006); (citing, Samii v.
Samii, 847 A.2d 691, 694 (Pa. Super. 2004)}.
The support guidelines allow the court to include private school tuition
in the support amount if the court determines that the need for private school
is a reasonable one. See Pa. R.CP. No. l 9 l 0. l 6-6(d). See also Fitzgerald v.
Kempf, 805 A.2d 529 (Pa. Super. 2002). If private school tuition is found to
be a reasonable need of a child, a support award may be adjusted so that
each parent provides a reasonable share of the tuition. Fitzpatrick v.
Fitzpatrick, 603 A.2d 633 (Pa. Super. 1992).
Whether a private school education is a reasonable need of the child
and a reasonable expectation and expense of the parents is determined by
deciding if private schooling 1) will benefit the child and if 2) private
schooling is consistent with the family's standard of living and station In life
before the separation. Knapp v. Knapp, 7 58 A2d 1205 (Pa. Super. 2000).
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Evidence of what is reasonable may include whether, prior to their divorce or
separation, the parties sent their other children to private school under
circumstances similar to those facing the child under consideration. Gibbons v.
Kugle, 908 A.2d 916 (Pa. Super. 2006).
There is no dispute between the parties with respect to a reasonable
need for private school education. Furthermore, it is clear that both parties
value private school education as both parties are Ivy League educated and
both testified that the quality of their children's education is very important to
them. The parties' dispute concerns the specific choice of school for A.N., and
Father's allegation that Mother unilaterally made that choice, at a
considerably higher tuition expense, without Father's input or consent.
This Court concluded, based on the evidence and testimony presented
at trial, that A.N.'s enrollment in the Country Day School of the Sacred Heart
("Sacred Heart"), as opposed to continued attendance at The City School,
inured to the benefit of the child and that it was a reasonable expense,
considering the household income available to the parties, Father's earnings,
and station in life.
Specifically, with respect to the benefit to the child, the scope of
evidence with which to make a determination consisted mainly, if not entirely,
on the testimony of the parties, as well as circumstantial evidence. Testimony
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elicited at trial indicated that The City School's high school program was
relatively new. Furthermore, the facilities at The City School's high school
were not acceptable to these parties, both of whom testified that the quality
of their children's education is of great importance. See Ex. D-3; See also
N. T. l/4/17, at 57, 156. With regard to the adequacy of The City School's
high school program, this Court found that Father's testimony was vague and
contradictory. Father seemed to focus simply on the fact that A.N. had been
attending The City School since Kindergarten as the reason for why she
should continue to attend school there. (N. T. l/4/T 7, at 43 ,r 6-18). For an
educated man seemingly focused on attaining the best education possible for
his children, Father's testimony lacked any substantive knowledge concerning
the quality of education for The City School's high school program.
Mother's testimony with regard to the quality of the City School's high
school program was more direct, specific, and articulate. Mother testified that
the parties decided that The City School's high school program was
"substandard." N. T. l/4/17, at 1 23. Mother testified that The City School's
high school is located in the basement of a church in Center City, and the
entire high school, 9th through 1 21h grade, consisted of approximately forty
(40} children. Id at 122-1 23. Mother further testified:
[T)he resources that (The City School] has and the exposure and the
things that they'll be able to do to prepare for college are
significantly limited. There are no outdoor grounds. There would be no
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ability to play sports. There'd be no ability to socialize, no ability for
prom.
Id at 123.
Mother's testimony with respect to the parties' joint recognition that the
City School's high school program does not reach an acceptable standard, is
further supported by the following circumstantial evidence:
1. The parties' oldest child, was removed from The City School
after completion of his eighth grade year. He did not attend The
City School for high school, but instead attended another private
school, The Church Farm School.l ' See N. T. l/4/17, at 86-87;
123.
2. Father was aware of A.N.'s participation in a high school
entrance exam for Notre Dame Academy. N.T. 1/4/17, at 57-
60. After A.N. took the exam, Father himself then purchased a
book for A.N., which was titled Catholic High School Entrance
Exams. Id at 58-59; 1 20-122.
3. Although email correspondence from Father's counsel to Mother's
counsel in October of 2015 indicated that he opposed any
change in A.N.'s school, Father himself sent an email to Mother
11
Father testified that the Church Farm School was cheaper due to scholarships that the parties' oldest child
received. However, this Court found that his enrollment in Church Farm School was also supportive of Mother's
testimony that these parties both recognized that the City School's high school program was not acceptable for
him, and thus looked at other schools in which to send him.
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on July 6, 2016, in which he indicated that he was "not
opposed" to sending A.N. to another school but that the "quality
of the institution and the costs are important" to him. See Ex. D-
3.
This Court notes that the Superior Court has held an obligor
responsible for private school tuition, even in light of the obligor's
"disagreement" with the obligee's decision to send a child to private school.
See Murphy v. McDermott, 979 A.2d 373 (Pa. Super. 2009). In Murphy, the
Superior Court affirmed the trial court's order for a father to contribute
toward the cost of a child's private school tuition where the child would
benefit from a private school education and where such education was
consistent with the family's standard of living. The trial court reasoned that
the father could "easily and adequately" afford to· pay for the contribution,
and that in light of the father's station in life and assets, it would be in the
child's best interest to continue his private school education. Id at 37 5.
Father's assertion that he should not be responsible for Sacred Heart
tuition because he "did not agree" to the A.N.'s enrollment in Sacred Heart is
without merit. For this Court to hold that Father should not responsible for
contribution to Sacred Heart's tuition, solely because he "did not agree" to
send A.N. to Sacred Heart, would be contrary to the holding set forth In
Murphy. However, in its Findings of Fact and Conclusions of Law, filed
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contemporaneously with its March 21, 2017 Order, this Court addressed
Father's allegation that Mother enrolled A.N. in Sacred Heart without Father's
consent. See 3/21/17 Support Order, at 1{ 99-122.
Specifically, this Court heard considerable testimony and evidence
presented with respect to the issue of whether Mother had informed Father of
her intent to remove A.N. from The City School and enroll her in Sacred
Heart, and whether Father, who is has shared legal custody of the children,
consented to Mother's decision to enroll A.N. in Sacred Heart. Father
presented email correspondence between his counsel and Mother's counsel
from October of 2015, which stated that Father was opposed to any change
in A.N.'s school for the 2016-17 school year. See Ex. D-2. The matter
evidently was not discussed again until December of 2015, during a parent
teacher conference, wherein Mother raised the issue of changing A.N's school
due to the fact that there was no school bus transportation from Mother's
house to The City School's high school location. N. T. l/4/7 7, at 55-56; Ex. D-
3.
Mother testified that, between October of 2015, when Father's counsel
sent an email to Mother's counsel opposing a change in A.N.'s school, and
June of 201 6, there were numerous verbal discussions between the parties in
which the parties jointly recognized the need to change A.N.'s school due to
concerns over the quality of education at The City School, and were in
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agreement to allow the child to test for admission to prospective high schools.
See N. T. l/9/17, at 119-1 23. Although there was no evidence of any
written communications between the parties from October of 2015 to June of
201 6, this Court found that circumstantial evidence supported and lent
credibility to Mother's testimony that Father consented to A.N.'s enrollment in
Sacred Heart:
1. Following the parent teacher conference, in December of 2015,
A.N. visited Father. At that point Father knew that A.N. hod taken
an entrance exam to Notre Dame Academy and that Mother was
concerned over transportation issues with respect to The City
School's high school location. Following A.N.'s visit with Father in
December of 2015, Father sent A.N. a book titled Catholic High
School Entrance Exams. N.T. 1/4/17, at 58; 120-122; 158-159.
2. As stated above, Mother testified credibly with respect to the
parties joint recognition that it would not be in A.N.'s best interest to
attend The City School for high school, due to the substandard
quality of the high school program. Id. at 123. This joint recognition,
as testified by Mother, is supported by the fact that the parties'
oldest child did not attend The City School for high school. Id at
86-87; 123.
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3. In his email of July 6, 2016, Father stated that he is "not opposed"
to sending A.N. to another school, although the quality of school
and the costs are important to him. See Ex. D-3
4. Mother's testimony that, subsequent to the email correspondence of
July 6, 2017, Father agreed to A.N.'s attendance at Sacred Heart
in "July or August" is substantiated by the fact that Father did not
file any pleading in the appropriate forum to enforce his legal
custody rights which he now alleges were violated by Mother. See
N.T. 1/4/17, at 126; 160-161.
Furthermore, it is unclear why Father waited over six (6) months and
did not participate in selection of schools for the upcomlnq school year when
he knew in October of 20 l 5 that Mother wanted to change the child's school
due to transportation concerns, as well as concerns over the inadequacy of
the high school facilities at The City School. At trial, Father focused on his
legal custody rights which he insisted had been violated by Mother's
unilateral decision to enroll A.N. in a new school. He seemed to construe his
legal custody rights as some sort of retained veto power, exercisable at any
time, over Mother's actions with respect to decisions that need to be made to
further A.N.'s education. This Court found that Father's focus on his legal
custody rights was misplaced in light of the fact that he did not exercise his
legal custody duties commensurate with those rights. He did not show any
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evidence that he offered any suggestions or alternative options with respect
to the child's future schooling. He showed no evidence that he attempted to
participate in addressing Mother's concerns with regard to transportation or
her concerns regarding the continued quality of A.N. 's education.
Father's expressed concerns and main reasoning for opposing A.N.'s
enrollment in Sacred Heart were based upon financial concerns as opposed
to academic. N. T. l/4/17, at 43-44. Because Father's expressed financial
concerns are relevant to the determination as to whether the costs associated
with A.N.'s enrollment in Sacred Heart are reasonable, in light of Father's
assets, earnings, and station in life, this Court addressed this issue in the
Findings of Fact and Conclusions of law, filed contemporaneously with the
March 21, 2017 Support Order. See 3/21/17 Support Order, at ,I 99-
122).
Specifically, this Court found that Father's current earnings amounted
to Two Hundred Ten Thousand Dollars ($210,000.00) per year. Id at ,I 83.
This Court calculated Father's net monthly income for the purposes of child
support at Eleven Thousand Five Hundred Forty-One Dollars and Forty Cents
( $11,541 .40). Id At Father's current net monthly income, his base child
support was calculated by this Court to be One thousand Nine Hundred Fifty-
Three Dollars and Twelve Cents ($1,953.12) per month. Id at ,r 98a.
Contribution towards total tuition (The City School for J.N. plus Sacred Heart
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for A.N.) was calculated to be One Thousand Seven Hundred Sixty-Five
Dollars and Thirty-Nine Cents ($1,765.39). Id. at ,I 98c. Father was given
credit for health insurance coverage that he provides for the children. Id at ,I
98b. Credit given to Father was calculated at Thirty-Five Dollars and Sixty
Cents per month ( $35.60). Id. Therefore, including tuition Father's total
monthly support obligation was calculated by this Court to be Three
Thousand Six Hundred Eighty-Two Dollars and Ninety-One Cents ($3,682.91)
per month. Id. at ,I 137f. This monthly amount (the combination of base
support plus tuition for both children) is equivalent to approximately thirty-
two percent (32%) of Father's net monthly income. In light of this fact, as well
as the determined benefit· of Sacred Heart for the child, in accordance with
tlie case law cited herein, this Court found that A.N.'s Sacred Heart tuition .
was a reasonable cost.
CONCLUSION
For the above stated reasons this Court's Support Order dated March 21,
2017 should be affirmed.
BY THE COURT:
Dominic F. Pileggi, J.
NO'nCE PURSµ�11]LE 236
MAllED__lz._ 11 Xl
DOME TIC RE fioNS