Carmen, D. v. Carmen, G. ( 2014 )

J-A23033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DANA LEE CARMEN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GARY JOHN CARMEN, :
:
Appellant : No. 779 WDA 2013
Appeal from the Order entered on April 9, 2013
in the Court of Common Pleas of Allegheny County,
Family Court Division, No. FD-08-7066-004
DANA LEE CARMEN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
GARY JOHN CARMEN, :
:
Appellee : No. 886 WDA 2013
Appeal from the Orders entered on April 9, 2013
and May 8, 2013 in the Court of Common Pleas of Allegheny
County, Family Court Division, No. FD-08-7066-004
BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 30, 2014
1
We affirm in
part and reverse and remand in part.
1
We note that trial court subsequently entered an Amended Order on May 8,
2013, which corrected a clerical error in the April 9, 2013 Order.
J-A23033-14
The trial court set forth the relevant factual and procedural history in
its Opinion, which we incorporate herein by reference. See Trial Court
Opinion, 8/9/13, at 1-3.
Husband and Wife each filed a timely Notice of Appeal and a court-
ordered Concise Statement of Matters Complained of on Appeal.2
On appeal, Husband raises the following issues for our review:
1. [Whether t]he [trial c]ourt erred in deciding the need for
[W]ife and children was $400.00 [per] month for food and
$300.00 [per] month for clothing[?]
2. [Whether t]he [trial c]ourt erred in its determination of net
income for [Husband], pursuant to Pa.R.C.P. 1910.16, 1-5[?]
2
Husband filed his Notice of Appeal on May 7, 2013. The trial court entered
its Amended Order the following day, on May 8, 2013. Ordinarily, after an
appeal is taken, the trial court may no longer proceed further in the matter.
See Pa.R.A.P. 1701(a). However, Rule 1701(b) provides certain exceptions
to the general prohibition, and permits the trial court to, among other
appeal of the matter is pending. Pa.R.A.P. 1701(b)(1). Here, the trial court
entered the May 8, 2013 Amended Order in an effort to formally correct its
April 9, 2013 Order, which inadvertently omitted the $48.00 health
insurance contribution for D., as previously determined by the hearing
officer. Because the trial court did not make a substantive modification of
Order was a permissible correction under Rule 1701(b)(1). See Pa.R.A.P
1701(b)(1); see also Sell v. Sell, 714 A.2d 1057, 1063 (Pa. Super. 1998)
counsel fees to mother, after an appeal of the prior support order had been
filed, was permitted by Rule 1701(b)(1) because the award of counsel fees
was already of record, but had been inadvertently omitted from the prior
order); Hoag v. Hoag, 646 A.2d 578, 580 n.2 (Pa. Super. 1994) (holding
been filed, to clarify and correct its prior support order, conformed with Rule
1701(b)(1) because it was not a substantive modification of the prior
support order).
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3.
borrowing money from a friend ($9,000.00) was income and
mother was income[?]
4. [Whether t]he [trial c]ourt erred in not allowing [a] credit to
Husband of the expenses [Husband] spent in accord with the
y share the reasonable and ordinary
5. [Whether t]he [trial c]ourt erred in apportionment of the
$64,000 left in the marital accounts[?]
6. [Whether t]he [trial c]ourt erred in awarding attorney fees
without specific findings of fact listed that are capable of
being addressed[?]
7. [Whether t]he [trial c]ourt erred in requiring Husband to pay
$25,000.00 from the value of his life insurance policy which
does not exist[?]
8. [Whether t]he [trial c]ourt erred and miscalculated the cost
Wife[?]
9. [Whether t]he [trial c]ourt erred by not permitting [Husband]
Friedlander),] who would speak
original).
The trial court reviewed
relevant law, and concluded that most of his issues had been waived. See
Trial Court Opinion, 8/9/13, at 3-6. The trial court determined that Husband
had only preserved claims relating to (1) calculation of child support arrears;
and (2) calculation of the child support obligation. See id. at 6. We adopt
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the sound reasoning of the trial court, and will review only those claims
properly preserved by Husband. See id.
With regard to the calculation of child support arrears, the trial court
addressed this issue and determined that an error was made in calculating
issue. See id. at 6-7. The trial court determined that the correct amount of
child support arrears should have been $16,360.28. See id. We agree with
the reasoning of the trial court, and reverse and remand as to this issue for
recalculation of the child support arrears.
With regard to the calculation of the child support obligation, Husband
argues that the trial court erred by determining that his monthly income is
-12. Husband claims that his income
calculation in 2008. Id. at 12. Husband asserts that the trial court failed to
his income. Id. Husband asserts that the lower court erred by determining
that loans made to him were for attorney fees, despite his claim that they
Id. at 13. Husband argues that the trial
supplement products, including rebates and commissions, in its calculations.
Id. at 13-15. Husband contends that the trial court erred by not permitting
the rebuttal deposition of Dr. Friedlander on the issue of whether T. is
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disabled. Id. at 29-30. According to Husband, Dr. Friedlander would have
testified that T. can see out of both eyes and, with special glasses, can see
to the left. Id
to take the rebuttal deposition of Dr. Friedlander. Id. at 30-31.
The trial court set forth the relevant law and addressed this issue,
determining that it lacks merit. See Trial Court Opinion, 8/9/13, at 7-11.
We agree with the reasoning of the trial court and affirm on this basis as to
this issue. See id.
In her cross appeal, Wife raises the following issues for our review:
1. [Whether t]he [trial c]ourt erred and/or abused its discretion
in finding that Husband had a net income of only $2,244.00
[per month,] and failing to find that Husband had a[n]
earning capacity of $8,169.32 per month, which is consistent
with his actual monies received per month through his bank
account, his perquisites from employment[,] and previously
being paid in cash[?]
2. [Whether t]he [trial c]ourt erred and/or abused its discretion
in awarding only $5,000.00 in counsel fees [to Wife,] despite
his failure to complete discovery, and his attempts to amend
his pre-trial statement and present additional witnesses
during trial, all of which are conduct permitting the award of
attorney fees pursuant to 42 Pa.C.S.A. § 2503(7) and 23
Pa.C.S.A. § 4351[,] and for also failing to find that [Husband]
owned additional and sufficient assets which could be used to
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3
erred by finding that Husband had a monthly income of only $2,244.00. Id.
7. Wife claims that she established, without contradiction, that $8,169.32
Id. at 7. Wife
claims that Husband, a self-employed general contractor,4 had the ability to
manipulate his income. Id
regarding his income was incredible, as he was unable to provide any details
regarding any of his contracting jobs or the number of hours he worked per
day or per week. Id. Wife contends that, although Husband claimed that
he is unable to work as much as he previously worked due to health
concerns, he presented little or no evidence regarding his health concerns or
their impact on his ability to work. Id. at 8-9. Wife asserts that Husband
has willfully failed to obtain or maintain appropriate employment. Id. at 9.
Wife argues that the trial court erred by not attributing to Husband all of the
advantages he enjoyed by running his own business, including the payment
i.e., truck
payment, car payment, automobile insurance, health insurance, gasoline,
etc.) totaling $4,877.52 per month. Id. According to Wife, these payments
3
We note that Wife failed to include a statement of questions raised on
appeal in her brief. See Pa.R.A.P. 2111(a)(4), and 2116(a). However, we
will not dismiss her cross appeal on this basis.
4
Husband is the president and sole employee of his company, Fred Carmen
& Son.
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are income to Husband in the form of either compensation or bonuses. Id.
2009 and 2011, the company was profitable, netting an income to Husband
of $5,400.00 to $7,000.00 per month. Id. at 10. Wife also contends that
the trial court failed to attribute, as income to Husband, various deposits
made into his personal checking account. Id. at 10-11. Wife claims that the
made to Husband as income, noting that Husband produced no
documentation regarding the loans, and merely claimed that the money was
given to him by a friend. Id
clearly cash payments for work performed by Husband, and that they should
have been attributed as income to Husband. Id. at 11-12.
The trial court set forth the relevant law and addressed this issue
before determining that it lacks merit. See Trial Court Opinion, 8/9/13, at
7-9. We agree with the reasoning of the trial court and affirm on this basis
as to this issue. See id.
erred by awarding her only $5,000.00 in attorney fees, despite finding that
5
12. Wife asserts that the trial court erred by failing to award her attorney
5
Although Husband challenged the award of attorney fees, the trial court
found that he had waived this issue. See Trial Court Opinion, 8/9/13, at 6
n.7.
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fees pursuant to 23 Pa.C.S.A. § 4351. Id. Wife claims that the trial court
improperly ruled that there was no fund available to Husband for the
payment of her attorney fees. Id. at 12-13. Wife asserts that the trial
obdurate or vexatious Id. at 13.
various discovery, evidentiary and procedural violations, and asserts that
she incurred additional attorney fees by having to contest his violations. Id.
at 14-15. Wife claims that, based on the additional attorney fees that she
court erred by awarding her only $5,000.00 in attorney fees. Id.
The trial court set forth the relevant law and addressed this issue,
determining that it lacks merit. See Trial Court Opinion, 8/9/13, at 11-14.
We agree with the reasoning of the trial court and affirm on this basis as to
this issue. See id.
Affirmed in part, and reversed and remanded in part in accordance
with this Memorandum; Superior Court jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2014
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