Barnabei, E. v. DeVitis, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EDWARD B. BARNABEI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DONNA M. DEVITIS : No. 2299 EDA 2021
Appeal from the Order Entered September 22, 2021,
in the Court of Common Pleas of Montgomery,
County Civil Division at No(s): 2003-06071,
PACSES 420103824.
EDWARD B. BARNABEI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONNA M. DEVITIS :
:
Appellant : No. 2553 EDA 2021
Appeal from the Order Entered September 22, 2021,
in the Court of Common Pleas of Montgomery County,
Civil Division at No(s): 2003-06071,
PACSES 420103824.
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 10, 2023
In this consolidated matter, Appellant/Cross-Appellee Edward B.
Barnabei (Father) and Appellee/Cross-Appellant Donna M. Devitis (Mother)
appeal from the order establishing Father’s child support obligation. This case
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concerns, among other issues, our Rules of Civil Procedure governing
deviations from the basic child support schedule. The trial court imposed two
separate deviations: 1) Father’s lack of custody; and 2) the Child’s unusual
needs. See Pa.R.C.P. 1910.16-4 (Explanatory Comment – 2010); Pa.R.C.P.
1910.16-5(b). After review, we affirm the trial court’s substantive child
support decisions, but remand, per the trial court’s request, to allow the court
to correct an administrative oversight.
At issue is the support of the parties’ 20-year-old son, J.D. (the Child).
Although the Child has reached the age of majority, it was uncontested that
he was still entitled to support given his severe physical and mental
disabilities.1 Father has not exercised custody of the Child in over a decade.
Mother acts as the Child’s fulltime caretaker and does not work. Father is
employed as a nurse anesthetist.
The litigation has been extremely protracted and was already the
subject of multiple appeals. We summarize the procedural history as follows.
In 2017, Mother filed a petition to modify the parties’ 2013 child support order.
The parties’ case was heard by a hearing officer, who made findings and issued
a recommended order. Dissatisfied with the order, the parties then filed
exceptions with the trial court. The trial court remanded the case back to the
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1The Child has suffered disabilities for most of his life. The diagnoses include
autism spectrum disorder and Tourette’s Syndrome. The Child also requires
physical therapy. See 23 Pa.C.S.A. § 4321 (3) (“Parents may be liable for the
support of their children who are 18 years of age of older.”).
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hearing officer. This cycle continued over the next four years until, after the
fifth round of exceptions, the trial court issued the final appealable order 2 on
September 22, 2021.3
These consolidated appeals primarily concern the trial court’s imposition
of an upward deviation from Father’s basic child support obligation. Our Rules
of Civil Procedure provide that an upward deviation might be appropriate when
an obligor-parent exercises little or no custody. See Pa.R.C.P. 1910.16-4
(Explanatory Comment – 2010). Independent from the custody basis for an
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2This Court had previously quashed an appeal from 2020, holding that the
matter was interlocutory given the trial court’s remands to the hearing officer.
See T.C.O. at 10.
3 We recognize that Montgomery County employs an exceptions procedure to
adjudicate support matters. See Pa.R.C.P. 1910.12. Such a procedure is
designed to make the resolution of support matters efficient. Here, however,
there was a breakdown in court operations, which we assume was exacerbated
by the COVID-19 pandemic. But we note that the trial court was under the
impression that only the hearing officer could make the requisite findings and
that it was the trial court’s role to review those findings. See Trial Court
Opinion, 3/29/22, at 2.
This is incorrect. “[T]he trial court cannot delegate its judicial duty as ultimate
finder of fact; although the trial court’s scope of review is limited to evidence
received by the hearing officer, ‘the trial court is obligated to conduct a
complete and independent review of the evidence when ruling on exceptions.’”
Sirio v. Sirio, 951 A.2d 1188, 1196 (Pa. Super. 2008) (quoting Cunningham
v. Cunningham, 548 A.2d 611, 613-14 (Pa. Super. 1988)).
If the trial court was dissatisfied with the timeliness of hearing officer’s orders,
or the hearing officer’s ability to comprehend its remand instructions, we
remind the trial court that it possessed the authority to streamline the process
and hold its own hearing. A trial court should do this, particularly in instances
where the only issue on remand is an administrative recalculation using
figures that are no longer in question.
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upward deviation, a deviation might also be appropriate due to several other
factors, including the Child’s unusual needs. See Pa.R.C.P. 1910.16-5(b)(1)-
(9).
At one point during the litigation, the trial court seemingly ruled that
Mother was not entitled to a deviation under Rule 1910.16-5, because she
failed to provide sufficient evidence relating to the Child’s unusual needs.
However, the following year, a new trial judge took over the case. The new
judge ruled that Mother had preserved her ability to raise the unusual needs
deviation issue.
The parties’ ultimate child support order was broken down by year, from
2017 through 2021. The order included an upward deviation due Father’s lack
of custody time, per Rule 1910.16-4, amounting to an additional 30% of
Father’s base support obligation, as well as a separate upward deviation of
$300 due to the Child’s unusual needs, per Rule 1910.16-5(b). The parties
filed an appeal and cross-appeal, respectively.
Father presents the following issues:
1. Whether the trial court erred as a matter of law and
committed an abuse of discretion in finding that the
February 25, 2019 Order, Part One, entered by a
transferor judge did not resolve finally the issues
raised in Mother’s petition to modify support filed on
June 22, 2017, and as a result, violated the rule of
coordinate jurisdiction?
2. Whether both the trial judges erred and committed an
abuse of discretion in 1) finding that $300 was a
reasonable upward deviation for Father’s lack of
physical custody when there was no evidence of
record supporting such a deviation and 2) finding that
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the Guidelines authorize an automatic 30% upward
deviation from Guideline Amount when a parent does
not exercise physical custody of a child?
Father’s Brief at 11-12 (cleaned up).
Mother presents the following cross-appellate issues, which we have
reordered for ease of disposition:
1. Whether the court erred and committed an abuse of
discretion by limiting the upward deviation from the
support guidelines based upon the costs incurred by
the Mother related to the Child’s significant
disabilities, in violation of Pa.R.C.P. 1910.16-5(a) and
(b), where Mother was denied the opportunity to
present testimony of herself and relevant witnesses
as to the financial impact of the Child’s disabilities
upon the household. The factors that impact Mother’s
financial status include, but are not limited to,
Mother’s inability to work due to the need to provide
direct care for the Child?
2. Whether the court erred by limiting the upward
deviation for the Father’s lack of custody to the
amount of $300 per month where Mother established
that she incurs expenses in excess of that amount and
where Mother was denied a full and fair opportunity to
present evidence of such expenses?
3. Whether the court erred and committed an abuse of
discretion by failing to grant Mother’s request to
conduct discovery related to Father’s income and
employment status?
4. Whether the court erred by affirming the support
hearing officer’s July 19, 2021 order addressing
Father’s obligation to pay 100% of unreimbursed
medical expenses insofar as that order fails to specify
that Father’s responsibility to reimburse 100% of
medical expenses includes reimbursement for
medical, therapeutic, psychological and counseling
expenses pursuant to Pa.R.C.P. 1910.16-6(c), despite
that issue having been raised in Mother’s Exceptions
filed on August 9, 2021?
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Mother’s Brief at 5.
We begin with our standard of review:
We review child support awards for an abuse of discretion.
A court does not commit an abuse of discretion merely by
making an error of judgment. Rather, a court abuses its
discretion if it exercises judgment that is manifestly
unreasonable or the result of partiality, prejudice, bias, or
ill-will as shown by the evidence of record. This Court has
further observed that we will not disturb a support order
unless the trial court failed to consider properly the
requirements of the rules governing support actions.
Hanrahan v. Bakker, 186 A.3d 958, 966 (Pa. 2018) (citations omitted).
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. Silver v. Pinskey, 981 A.2d 284, 291 (Pa. Super. 2009) (en banc)
(citation omitted).
In Pennsylvania, child support awards are calculated in accordance with
specific statutory guidelines, using a complex system that accounts for the
obligor’s capacity to pay and the reasonable needs of the particular children.
Commonwealth v. Hall, 80 A.3d 1204, 1216 (Pa. 2013); see also 23
Pa.C.S.A. § 4322(a); 42 U.S.C. § 667(a), (b)(2). The guidelines provide
comprehensive instructions for calculating child support awards based on the
obligor’s net income from all sources. Id. at 1217; see also 23 Pa.C.S.A. §
4322(a). Those guidelines are based on the reasonable needs of the child,
and they specify how child support shall be calculated. “In determining the
reasonable needs of the child or spouse seeking support and the ability of the
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obligor to provide support, the guideline shall place primary emphasis on the
net incomes and earning capacities of the parties, with allowable deviations
for unusual needs, extraordinary expenses and other factors, such as the
parties' assets, as warrant special attention.” 23 Pa.C.S.A. § 4322(a). “The
Pennsylvania Rules of Civil Procedure 1910.16-1 et seq., which became
effective in 1989, represent this Court’s manifestation of these principles.”
Hanrahan, 186 A.3d at 966-67.
A. Deviation for child’s unusual needs.
We first address both parties’ claims regarding an upward deviation for
the Child’s unusual needs under Rule 1910.16-5. Disposition of these claims
necessitates a deeper analysis of one aspect of the procedural history. In
February 2019, the trial court was tasked with adjudicating the parties’ second
round of exceptions. The hearing officer had previously recommended two
upward deviations: one for Father’s lack of custody under Rule 1910.16-4;
and one for the Child’s unusual needs under Rule 1910.16-5. But the trial
court had remanded the case for the hearing officer to take additional evidence
and testimony, and determine whether those deviations had an evidentiary
basis.4
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4 Regarding the Child’s unusual needs, the previous support obligation from
2013, included an upward deviation totaling $330. Evidently, the purpose of
the remand was for the hearing officer to take evidence to determine whether
the $330 figure was still appropriate.
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After the remand hearing, the hearing officer reported back to the trial
court that an upward deviation due to Father’s lack of custody time was still
appropriate under Rule 1910.16-4, even though Mother presented no
testimony as what a reasonable deviation should be. As to the deviation under
Rule 1910.16-5 (relating to the Child’s unusual needs), the hearing officer
reported that Mother presented no evidence of expenses that she actually
incurred. Thus, the hearing officer did not recommend a secondary deviation
due to the Child’s special needs.
In issuing this recommendation, however, the hearing officer made a
procedural mistake. During the interim, in 2018, the parties filed new
modification petitions – not to be confused with Mother’s 2017 modification
petition, which underpinned the litigation. The hearing officer’s mistake was
that she consolidated the new modification petitions with the remand directive
and issued one consolidated proposal. Thus, when the trial court issued its
February 25, 2019 order adjudicating the exceptions, the court was
attempting to untangle the hearing officer’s consolidation.
The trial court’s first task was determining whether the hearing officer
followed its remand directive – that is, whether the hearing officer changed
her mind about her proposed upward deviations in light of Mother’s evidence
(or the lack thereof).5 In Part One of its February 25, 2019 order, the trial
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5 The trial court’s second task was how to proceed with the 2018 petitions,
which the hearing officer mistakenly incorporated into the ongoing litigation
from Mother’s 2017 petition. These findings were detailed in Part Two of the
court’s February 2019 Order.
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court agreed with the hearing officer’s recommendation that an upward
deviation was appropriate under Rule 1910.16-4 due to Father’s lack of
custody time, even though Mother failed to present evidence of what a
reasonable custody deviation should be. Furthermore, trial court agreed with
the hearing officer’s recommendation that a deviation was not warranted
under Rule 1910.16-5, because Mother failed to present documentation of
expenses she incurred as a result of the Child’s unusual needs. These findings
were detailed in Part One of the trial court’s February 25, 2019 Order:
A review of this record shows that mother did not present
clear, specific, and precise documentary evidence of her
out-of-pocket expenses spent on the Child’s special needs,
even though ordered by the undersigned to do so.
Order of Court, 2/25/19.
Mother filed for reconsideration, which the trial court denied on April 2,
2019. However, the court attempted to clarify its prior order:
Unfortunately, the hearing officer mixed together two
separate proceedings.
First, the hearing officer properly followed the court’s
instructions and diligently took testimony (in two hearings)
following the undersigned’s remand order for which the
court is appreciative. […]
Second, the hearing officer took testimony and completed
and closed the hearing on bother parties’ petitions to
modify. This was completely separate from, and completely
different from, the undersigned’s remand order on different
issues. The lengthy hearing on the parties’ petitions
to modify has been concluded. Neither side will get a
second bite of the apple on that hearing. The court
will not-reopen that hearing to allow additional
testimony or exhibits from either side. […]
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The reason the court entered the two-part order of February
25, 2019 was that, even though the DRO and the hearing
officer may have been well intentioned in combining both
the remand order and the petitions to modify in one
proceeding, it caused the undersigned confusion when
reading the combined hearing officer’s interim order of
November 21, 2018 and the parties’ briefs thereafter on
exceptions. […]
That two-part order, addressed, in the first part of the order,
the undersigned’s remand order, and in the second part,
addressed, procedurally, the petitions for modification. In
this way, there will be two separate orders from the hearing
officer, one on the remand matter and one on the petitions
to modify. It will be done in lock-step manner. It is purely
procedural, straightforward, and correct. Either party
may file exceptions. All issues are preserved for
argument. It is as simple as that.
Order of Court, 4/2/19 (emphasis added).
As discussed infra, it is Father’s position that the February 25, 2019
order meant that Mother was not entitled to a deviation under Rule 1910.16-
5 (relating to a child’s unusual needs) – that this question was settled once
and for all by the February 2019 order.
The trial judge who issued the February 2019 order – The Honorable
Emanual A. Bertin – was replaced by the Honorable Daniel J. Clifford in 2020.
In subsequent proceedings, Judge Clifford did not believe that Mother was
foreclosed from obtaining a secondary deviation for the Child’s unusual needs;
instead, Judge Clifford was persuaded by the proviso contained in the April
2019 clarification order, which provided: “Either party may file exceptions. All
issues are preserved for argument. It is as simple as that.” Id.
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When the case returned to the trial court for exceptions in August 2020,
Judge Clifford concluded that, in addition to an upward deviation for Father’s
lack of custody, a secondary deviation under Pa.R.C.P. 1910.16-5 was
appropriate after all. See Trial Court Opinion (T.C.O.), 3/29/22 at 8-9. The
court capped this secondary deviation at $300, slightly less than the $330
deviation imposed in the parties’ 2013 child support order. Id. at 9.
On appeal, Father argues that the phrase “all issues are preserved” did
not apply to Part One of the February 2019 Order resolving the deviation issue,
but only to Part Two of the February 2019 Order resolving the newly filed 2018
modification petitions. He maintains that when Judge Clifford awarded a
deviation in August 2020, Judge Clifford effectively undid what Judge Bertin
had ordered in February 2019. See Father’s Brief at 29. According to Father,
Judge Clifford erred because he violated the rule of coordinate jurisdiction.
Meanwhile, Mother argues that the deviation amount was erroneous, because
she was not afforded an opportunity to present evidence supporting a higher
figure. We address each claim in turn.
i. Father’s claim regarding the unusual needs
deviation.
Father’s first issue under the unusual needs deviation concerns what he
deems to be an inconsistent ruling by the trial court, thereby implicating the
coordinate jurisdiction rule. See Father’s Brief at 26. The coordinate
jurisdiction rule provides that where a case is transferred between judges of
coordinate jurisdiction, a subsequent jurist should not alter the determination
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of a prior jurist. Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003). The
rule acts “to protect the expectations of the parties, to ensure uniformity of
decisions, to maintain consistency in proceedings, to effectuate the
administration of justice, and to bring finality to litigation.” Id. In service of
these goals, the coordinate jurisdiction rule is subject to exception only in
“exceptional circumstances,” such as 1) where there is an intervening change
in the controlling law, 2) substantial change in the facts or evidence giving
rise to the dispute, or 3) where the prior holding was clearly erroneous and
would create a manifest injustice if followed. Commonwealth v. Starr, 664
A.2d 1326, 1332 (Pa. 1995).
Father’s claim – that Judge Clifford’s August 2020 award of a Rule
1910.16-5 deviation violated the rule of coordinate jurisdiction – presupposes
that Judge Bertin’s February 2019 order constituted a final determination that
Mother was not entitled to such a deviation. First and foremost, we are not
convinced that Judge Bertin made a definitive determination in 2019. We
agree with Judge Clifford’s rationale that Judge Bertin, in his April 2019
clarification order, expressly permitted Mother to re-raise the deviation issue
during the next round of exceptions when he stated: “All issues are preserved.
It is as simple as that.” Order of Court, 4/2/19 (emphasis added). In our
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view, Judge Clifford did not “alter the determination of a prior jurist,” and thus
we conclude that the rule of coordinate jurisdiction is inapplicable in this case.6
But even if we were to conclude that Father is correct, that Judge
Bertin’s February 2019 order was meant to foreclose Mother from re-raising
the Rule 1910.16-5 deviation issue, and that the rule of coordinate jurisdiction
did apply, we would still discern no error.
As noted above, a court may alter the prior ruling of a previous jurist in
exceptional circumstances, e.g., when the ruling was “clearly erroneous” and
would have created “a manifest injustice if followed.” See Starr, 664 A.2d at
1332. If Judge Bertin determined that a Rule 1910.16-5 deviation was not
allowable based on Mother’s faliure to provide documentation of incurred
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6 We do not overlook Judge Bertin’s other language from the April 2019
clarification order. Father argues that Judge Bertin foreclosed deviation issue
when Judge Bertin stated:
The lengthy hearing on the parties’ petitions to modify has been
concluded. Neither side will get a second bite of the apple on that
hearing. The court will not reopen that hearing to allow additional
testimony or exhibits from either side.
See Order of Court, 4/2/19 (emphasis added)
First, we construe this provision to apply to the parties’ 2018 modification
petitions, not necessarily to Mother’s 2017 petition (which encapsulated the
deviation question). Second, even if we were to find that Judge Bertin meant
to foreclose new testimony and evidence about the deviation question, it does
not follow that Judge Bertin meant to foreclose Mother from re-raising the
deviation question all together. It would just mean that Mother was bound by
the evidentiary record as it then stood.
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expenses, then that determination would have met the “clearly erroneous”
standard.
To explain, when deciding whether to deviate from the basic child
support obligation is appropriate, the trier-of-fact shall consider, among other
factors: the unusual needs and unusual fixed obligations; other household
income; the child’s age; the parties’ relative assets and liabilities; medical
expenses not covered by insurance; the parties’ and the child’s standard of
living; and other relevant and appropriate factors, including the child’s best
interest. See Pa.R.C.P. 1910.16-5(b)(1), (3), (4)-(7), (9).
Judge Bertin’s determination would have been erroneous for two
reasons. First, the unusual needs of the child is but one factor the trier-of-
fact must consider. Judge Bertin’s February 2019 order limiting any potential
1910.16-5 deviation to only this one factor – (b)(1) – would have been
improper, because the hearing officer would have been prevented from
considering other mandatory and relevant factors, such as: (b)(3)(“other
household income”); (b)(4)(“the child’s age”); (b)(5)(“the parties’ relative
assets and liabilities”); (b)(6)(“medical expenses not covered by insurance”);
(b)(7)(“the parties’ and the child’s standard of living”); (b)(9)(“other relevant
and appropriate factors, including the child’s best interests.”).
Second, Judge Bertin’s determination would have misapplied the text of
Rule 1910.16-5(b)(1). That provision mandates that the trier-of-fact consider
the child’s “unusual needs and unusual fixed obligations.” To be sure, the
obligee’s expenditures on those fixed obligations is certainly relevant
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information. But here, Mother sought a deviation under Rule 1910.16-5 so
she could afford additional services and tend to the Child’s special health
concerns. Rule 1910.16-5(b)(1) allows Mother to make such an argument. 7
Under the logic of Judge Bertin’s determination, if the obligee could not
afford to make an expenditure to address those unusual needs, then those
unusual needs simply did not exist. Judge Clifford’s decision to award a
deviation under Rule 1910.16-5(b) explains why such logic cannot stand:
The final issue pertains to the failure of the [hearing officer’s
proposed order] to include any additional, or special needs,
expenses for the child to justify an upward deviation.
Rule 1910.16-5(b) provides that a number of factors may
be considered by the trier of fact in deciding on a deviation
from the base amount of support as determined by the
guidelines.
In this matter, a number of the enumerated factors would
apply including, but not limited to, the following: unusual
needs, relative assets of the parties, standard of living of
the parties, and the best interests of the child.
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7 We also note our decision in M.L.M. v. C.L.M., 241 A.3d 430 (Table), 2020
WL 6106651 (Pa. Super. 2020) (non-precedential decision). We may cite non-
precedential decisions after May 1, 2019, for their persuasive value. M.L.M.
involved a deviation under a high-income analysis, as opposed to a deviation
due to a child’s disability. Though, both analyses implicate the enumerated
factors under Pa.R.C.P. 1910.16-5(b).
In M.L.M., the obligee-parent presented a list of goods and services she would
have provided to the child if increased child support had been available. The
trial court ruled that the list was excessive and shocking to the conscience.
We affirmed. In doing so, we clarified that the court was right to discount the
list of expenses because they were simply unreasonable; that this list
pertained to future, aspirational expenses did not automatically disqualify
Mother from making the request. See M.L.M., at *4; at *3 n.5.
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The parties agree that the child has been diagnosed with
several mental impairments, requiring extra care and
attention that are ongoing past the usual age of
emancipation.
In fact, Mother’s earning capacity is set at “zero” (and
notably not disputed by Father) having had no employment
since 2010 due to the level of “hands on” care required for
the child.
The record reflected that Mother’s financial situation is dire;
being on public assistance, accepting food stamps and
residing in a one bedroom apartment with the child.
Upon review of the record, Mother did request that the
[hearing officer’s proposed order] enable her to provide
some additional, and specific, items for the child which she
could not afford to pay for and some what she was paying
for.
It also appears that Mother had several witnesses that were
prepared to testify as to some of the child’s additional needs
and expenses at the time proceedings but were not called
upon due to the press of hearing time.
These times were denied by the [hearing officer in her
proposed order] because Mother “failed to produce
documentary evidence of her out-of-pocket expense for the
child’s special needs.”
This requirement […] may be appropriate in a case where
Mother has income and the needs were being already paid
for, however, in this case, Mother’s income is zero.
As such, Mother clearly cannot afford to pay for these
additional expenses out of the base child support amount,
nor should she have to, and therefore it was [an] error to
not provide adequate latitude to her in this regard.
Notably, the prior [child support] order from July 30, 2013
had already contained an upward deviation of $330 per
month for special needs items so that there was always a
clear expectation by both parents that this type of deviation
would be necessary in this case going forward as well.
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Order of Court, 8/20/20 at 6-8, ¶¶35-46 (footnotes and citations to the record
omitted).
In sum, we do not find that Judge Bertin’s February 25, 2019 order
definitively prevented Mother from obtaining an upward deviation for the
Child’s unusual needs. In its April 2019 order, the court left the door open.
As such, we do not find that Judge Clifford’s August 2020 order granting the
deviation implicated the rule of coordinate jurisdiction. But to the extent that
the rule of coordinate jurisdiction was implicated, we would discern no error.
If Judge Bertin’s 2019 order constituted a final determination of the unusual
needs deviation, such a decision would have been “clearly erroneous” and
would have created a manifest injustice if followed. For these reasons,
Father’s first appellate issue is without merit.8
ii. Mother’s claims regarding the unusual needs
deviation.
We turn now to Mother’s cross-appeal regarding unusual needs
deviation. See Mother’s Brief at 9. Mother has consolidated her first and
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8 A final note, we observe that the trial court advanced an alternative theory
as to why its order should be affirm. The court reasoned that Father actually
waived this issue. According to the trial court, Father had agreed to a $300
deviation in lieu of Mother providing proof of her out of pocket expenses for
the Child’s unusual needs. See T.C.O. at 32. In a footnote contained in his
Concise Statement, Father explained that while he agreed to the $300 figure,
his position has always been that Judge Bertin’s February 2019 order
foreclosed Mother’s ability to seek the deviation. See Father’s Concise
Statement of Matters Complained of On Appeal, ¶ 6, n.1. As there is no record
of the exceptions argument, we cannot review what Father actually agreed to.
Thus, we consider Father’s challenged as preserved.
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second cross-appellate issues to present one argument. In essence, Mother
argues that that the deviation would have been greater had she been afforded
the opportunity to introduce relevant evidence. See id. As discussed above,
Mother did not present evidence of those expenses she actually incurred
regarding the Child’s special needs. What Mother sought was a deviation so
she could afford additional services for the Child. Mother claims that she
attempted to introduce the costs of those services, but was rebuffed by the
hearing officer. In her Brief, Mother claims she was prevented from calling
one of the Child’s therapists, who could have provided context for her
expensive requests. Mother also claims that one of the hearings was unfairly
cut short, because Father’s attorney was late. See id.As we concluded supra, under Rule 1910.16-5(b), Mother should have
been able to present an argument for aspirational expenses she would incur
on behalf of the Child. Although Judge Bertin seemed to be under the
impression that a claim for aspirational expenses was improper, Judge Clifford
subsequently afforded Mother a second opportunity to make her case. But
according to the trial court, Mother largely failed to do so. See T.C.O. at 42;
Order of Court, 8/20/20 at 6-8 (supra). Although Mother supplied the court
with some aspirational expenses, Mother also provided documents on
statistics and other information that the court found irrelevant. See id. at 41.
Still, the trial court afforded Mother “some latitude,” and ultimately factored
into its deviation award those aspirational expenses that were reasonable and
appropriate. Id. at 41-42.
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After review, we conclude that Mother’s first and second cross-appellate
issues lack merit for several reasons. First, Mother cites no relevant legal
authority to support her claims. See C.H.L. v. W.D.L., 214 A.3d 1272, 1276
(Pa. Super. 2019) (“It is well-established that the failure to develop an
argument with citation to, and analysis of, pertinent authority results in waiver
of that issue on appeal.”); see also Pa.R.A.P. 2119(a)-(b). Second, upon our
review of the transcripts, it appears Mother did not object to the hearing
officer’s courtroom procedure. See Pa.R.A.P. 302 (“Issues not raised in the
trial court are waived and cannot be raised for the first time on appeal”).
Third, even if we overlook these defects, Mother cannot articulate how the
evidentiary ruling constituted an abuse of discretion. Commonwealth v.
Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014) (“The admission of evidence
is a matter vested within the sound discretion of the trial court, and such a
decision shall be revered only upon a showing that the trial court abused its
discretion.”).
We are not persuaded that Mother’s proffered testimony and evidence
would have made a difference. Ultimately, the trial court considered Mother’s
aspirational expenses, the Child’s unusual needs, and determined that Mother
should receive a deviation similar to the 2013 deviation. This Court employs
an abuse of discretion standard. We will not disturb a child support order
unless it is manifestly unreasonable, or if the court failed to consider properly
the requirements of the rules governing support actions. Hanrahan, 186
A.3d at 966. Here, we discern no abuse of discretion.
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B. Father’s claim regarding the custody deviation.
Our review of this claim again necessitates a brief review of the
procedural history. Because the litigation spanned multiple years, so too did
the child support award. All told, the final child support order governs four
and a half years, from January 2017 through July 2021. Father’s income
changed only marginally throughout this time, and thus so did the support
obligation. As for the imposition of an upward deviation under Rule 1910.16-
4, the court initially imposed a $300 upward deviation – this figure is not to
be confused with the trial court’s final imposition of a $300 deviation under
1910.16-5, discussed supra. But by the time the trial court issued its final
order, the court ordered a standard upward deviation of 30% of Father’s basic
child support amount.
Father’s second appellate issue challenges this deviation. See Father’s
Brief at 44. His argument is two-fold. First, he argues Mother missed her
opportunity to prove that a custody deviation was warranted, when, in 2018,
she failed to provide the hearing officer with testimony as to what this
deviation should be. See id. at 44, 58. Second, Father argues even if a
custody deviation was warranted, the amount of the deviation – 30% of his
basic child support obligation – was erroneous. See Father’s Brief at 49. We
address each argument in turn.
Recall that in 2018, the trial court directed the hearing officer to take
evidence and testimony on whether deviation was warranted for Father’s lack
of custody time with the Child under Rule 1910.16-4. The hearing officer
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reported that Mother presented no evidence as to what a reasonable deviation
should be. Nevertheless, the hearing officer recommended a deviation for
Father’s lack of custody. On exceptions, the trial court agreed with the hearing
officer. See Order of Court, 2/25/19. Father claims this was an error, citing
Mother’s failure to meet her burden of proof.
The trial court disagreed. It concluded that Mother had no obligation to
substantiate her expenses to justify an upward deviation due to Father’s lack
of custody time. To resolve this issue, we must determine what Mother had
to prove in order to warrant an upward deviation.
The 2010 Comment to Rule 1910.16-4 provides:
The basic child support schedule incorporates an
assumption that the child spends 30% of the time with the
obligor and that the obligor makes direct expenditures on
their behalf during that time. Variable expenses, such as
food and entertainment, that fluctuate based on parenting
time were adjusted in the schedule to built in the
assumption of 30% parenting time. Upward deviation
should be considered in cases in which the obligor has
little to no contact with the child.
Pa.R.C.P. 1910.16-4 (Explanatory Comment – 2010) (emphasis added).
However, deviation does not turn on the simple question of whether the
obligor had contact with the child. The Rules account for some nuance:
[A]n upward deviation may not be appropriate if an
obligor has infrequent overnight contact with the
child, but provides meals and entertainment during
daytime contact. Fluctuating expenditures should be
considered rather than the extent of overnight time. A
downward deviation may be appropriate when the obligor
incurs substantial fluctuating expenditures during parenting
time but had infrequent overnights with the children.
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Id. (Emphasis added).
In this case, Father conceded – and the hearing officer consistently
determined – that he does not exercise any custody. And Father admitted he
does not know what expenditures Mother makes on behalf of the Child, but
that he made none. The court noted that Mother has full custody and incurs
all the Child’s expenses, which are unique given the Child’s special needs.
Mother also has no monthly income, nor an earning capacity. For support
purposes, Father’s monthly net income constitutes all over the parties’
combined income. See T.C.O. at 20-21. The trial court ultimately found:
Accordingly, despite neither party being able to present
testimony on what would be a “reasonable” deviation for
Father’s lack of custodial time, it was clear from the record
that a full 30% deviation was warranted[.]
Id. at 21.
We agree with the trial court’s determination that the above facts
constituted competent evidence of record warranting a deviation under Rule
1910.16-4. Father had no custody of the Child, nor did he make any
expenditures on the Child’s behalf. Therefore, Mother was entitled to
compensation for those expenditures that the support guidelines assumed
Father would make during his custodial time. Father’s claim that the deviation
lacked evidentiary support is without merit.
The question now becomes how much of an upward deviation was
lawful. Father argues that the Explanatory Comment does not mean that a
court must reflexively impose “a full 30%” upward deviation from the basic
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guideline obligation when a parent fails to exercise physical custody 30% of
the time.
The thrust of Father’s argument is that an upward deviation under Rule
1910.16-4 is meant to compensate the obligee-parent only for certain variable
expenditures, which fluctuate depending upon the parents’ custody
arrangement. For instance, if a child was with the obligor-parent for part of
the week, the obligee’s grocery bill would go down since she would not have
to feed the child. But if the obligor-parent does not exercise custody, or
otherwise contribute toward these expenses, then the obligee-parent’s bill
goes up.
Father argues that, by contrast, Rule 1910.16-4 was not designed to
compensate for those other child-rearing expenditures that both parents must
incur regardless of how much custody time they exercise (i.e., both parents
would have to furnish a room for the child regardless of whether the obligor-
parent exercised custody 4 days per week or 4 days per month).
In short, he claims an upward deviation under Rule 1910.16-4 must be
commensurate with those variable expenditures, not with the total child-
rearing expenditures. According to Father, those variable expenditures, for
which Mother would be entitled to a deviation, amount to a fraction of the
total child-rearing costs. That fraction is closer to 4.6% of the basic child
support obligation, not 30%. See Father’s Brief at 55 (citing Venohr, Jane
2012 Review of the Pennsylvania Child Support Guideline, Report to the
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Pennsylvania Department of Public Welfare Department of Child Support
Enforcement (March 30, 2012), p.62).9
For further support, Father cites the 2021 Explanatory Comment to
Pa.R.C.P. 1910.16-3, which states:
Previously, the Basic Child Support Schedule incorporated a
30% child custody presumption, which created
approximately a 5% decrease in the basic support
obligation across all combined monthly net incomes
regardless of the actual custody schedule. The new Basic
Child Support Schedule reflects the actual expenses of an
intact family living in a single household at the various
combined monthly net incomes and the number of children
with no shared custody adjustment.
Pa.R.C.P. 1910.16-3 (Explanatory Comment – 2021) (emphasis added).
Father reasons that the opposite must then be true; if a presumption of
30% custody means a 5% reduction of the basic support obligation, then no
custody means a 5% increase in the basic support obligation. Father
concludes that the court erred when it imposed a 30% upward deviation.
We understand Father’s arguments, and we agree that 2010
Explanatory Comment to Rule 1910.16-4 does not mean that an obligee-
parent is entitled to an automatic 30% upward deviation when the obligor-
parent fails to exercise custody and to make expenditures. Father is correct
that the guidelines do not provide a precise formula for deviating when the
obligor has no custody time, nor makes expenditures on the child’s behalf.
____________________________________________
9Jane Venohr is an economist who assisted the Domestic Relations Procedural
Rules Committee. See Pa.R.C.P. 1910.16-1 (Explanatory Comment – 2010);
(Explanatory Comment – 2013).
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For that very reason, we resort to our abuse of discretion standard. Our role
is to determine whether the trial court’s support award was manifestly
unreasonable and whether the court failed to consider properly the
requirements of the rules governing support actions. Hanrahan, 186 A.3d at
966.
In our review, we observe that from 2017 through 2021, Father’s
average net monthly income was approximately $10,800 per month.10
Father’s total child support obligation (including both deviations) comprises
approximately 20.89% of his monthly net income.11 Meanwhile, Mother and
the Child live in a one-bedroom apartment. She has had to utilize food
pantries and public assistance. We conclude that the 30% deviation was not
manifestly unreasonable, given the Child’s needs associated with his medical
condition, Father’s lack of custody, Father’s lack of expenditures, Father’s
income, Mother’s role as a fulltime caregiver and her lack of an earning
capacity. Under a different set of facts, such a high percentage deviation
might be manifestly unreasonable, even if the obligor-parent exercised no
____________________________________________
10 In 2017, Father’s monthly net income was $10,089.92. In 2018, it was
$9,736.18. In 2019, it was $10,214.75. It 2020, it was 10,378.93. For the
first six month in 2021, his monthly net income rose to $16,735.20. From
July 2021 onward, his monthly net income was 10,830.31.
11In 2017, the percentage was 21.62%. In 2018, it was 22.19%. In 2019, it
was 20.57%. In 2020, it was 21.22%. In 2021, it was 18.82%. If the trend
continues, Father’s percentage in 2022 is anticipated to be 20.67%.
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custody of the child, nor made any contributions. But in this case, we discern
no abuse of discretion.
C. Mother’s claim regarding the denial of her
discovery request.
In her third cross-appellate issue, Mother argues the trial court erred
when it did not grant her exception relating to her request for discovery. See
Mother’s Brief at 7. Early in the litigation, Mother motioned for leave for
discovery shortly after the matter was deemed “protracted.” Under our
support Rules, a party may move the court for a separate listing, when: there
are complex questions of law, fact, or both; or the hearing will be protracted;
or the orderly administration of justice requires that the hearing be listed
separated. See Pa.R.C.P. 1910.11(j)(1)(i)-(iii). If the motion for separate
listing is granted, discovery shall be available in accordance with Pa.R.C.P.
4001 et seq. See Rule 1910.11(j)(2).
According to Mother, the court never ruled on her discovery motion.
She reasons that the court’s failure to rule means the court effectively denied
her request. Mother sought discovery of Father’s financial information,
including his “full and complete copies” of his tax returns. See Mother’s Brief
at 8-9.12
____________________________________________
12We note again the dearth of relevant legal authority in Mother’s Brief, in
apparent circumvention of Pa.R.A.P. 2119. See C.H.L., 214 A.3d at 1276
(supra).
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The trial court did not address Mother’s claim in its trial court opinion.
However, upon review of the September 22, 2021 order (from which the
parties appeal), the trial court found that Mother waived this issue. The court
explained that, in March 2, 2021, Mother had filed a cross-exception regarding
the hearing officer’s failure to rule on the August 17, 2017 Moton for
Discovery. Order of Court, 9/22/21, at 2, ¶8. The trial court heard argument
on the discovery issue on June 25, 2021. Id. at 3, ¶9. The court then
remanded the case for the hearing officer to clarify her calculation of Father’s
income. Id. at ¶11. This resulted in a new order, which prompted new
exceptions. But at that time, Mother did not raise the issue of discovery again.
Id. at 4, ¶¶ 14-15.
Even if Mother preserved the issue, we discern no error or abuse of
discretion. The case may have been deemed protracted under Rule 1910.11,
but discovery was not necessarily warranted. Mother seemingly concedes that
she could not obtain discovery without leave of court. See Pa.R.C.P. 1930.5(b)
(“Discovery shall be available without leave of court…in…complex support
proceedings.”); cf. Pa.R.C.P. 1930.5(a) (“There shall be no discovery in a
simple support…proceeding[] unless authorized by order of court.”). Here,
Father was a W-2 wage earner. Father provided this information in
accordance with Rule 1910.11(c). Insofar as Father was not forthright with
his financial disclosure, we observe that the true nature of Father’s income
was litigated ad nauseam. Thus, even if Mother preserved this issue, we
discern no error or abuse of discretion.
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D. Mother’s claim regarding unreimbursed medical
expenses.
Mother’s final cross-appellate issue appears to be a housekeeping
measure. According to Mother, the final support order included an
administrative error. See Mother’s Brief at 7. The trial court inadvertently
omitted language requiring Father to pay for the Child’s unreimbursed medical
expenses, pursuant to Pa.R.C.P. 1910.16.6(c). In its Pa.R.A.P. 1925(a)
opinion, the trial court noted:
Upon review of each of the [hearing] officer’s
recommendations and orders following each remand, it
appears that the officer was, in fact, consistent in providing
that the unreimbursed medical [expenses] be covered
100% by Father. However, the undersigned acknowledges
that it was merely an administrative oversight to not have
the same consistency and to have included the same
additional provision indicating that the unreimbursed
medical expenses included psychiatric, psychological, and
therapy/counseling in this case.
[…]
Accordingly, upon completion of this appeal, with the
approval of the Court, the undersigned shall direct the
Domestic Relations Office to administratively amended the
July 19, 2021 Order such that the unreimbursed medical
expenses include psychiatric, psychological, and therapy /
counseling services (to be consistent with all prior ordered
entered in this matter).
T.C.O. at 39-40.
Therefore, we grant the request of the trial court and remand this matter
only insofar as the trial court may make this correction.
E. Conclusion
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In sum, we conclude: the trial court did not err or abuse its discretion
when it imposed upward deviations relating to the Child’s unusual needs (Rule
1910.16-5) or relating to Father’s lack of custody (Rule 1910.16-4). Mother
waived her challenge to the hearing officer’s purported denial of her proffered
evidence of the Child’s unusual needs. Mother waived her challenge to the
hearing officer’s purported denial of Mother’s request for discovery. Insofar
as Mother preserved these challenges, we discern no error or abuse of
discretion. Regarding Mother’s claim that the court inadvertently omitted the
requirement that Father pay the Child’s unreimbursed medical expenses, we
grant the request of the trial court to amend its order. In all other respects,
the order is affirmed.
Order affirmed. Case remanded so the trial court may amend its order
as requested. Jurisdiction relinquished.
Judge King joins the Memorandum.
Judge Sullivan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/2023
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