B.P. v. T.P. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.P. : IN THE SUPERIOR COURT OF
Appellee : PENNSYLVANIA
:
v. :
:
T.P. :
:
Appellant : No. 1378 MDA 2019
Appeal from the Order Entered July 9, 2019
In the Court of Common Pleas of Wyoming County
Civil Division at No(s): 19-DR-00038
BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.
MEMORANDUM BY KING, J.: FILED FEBRUARY 20, 2020
Appellant, T.P. (“Mother”), appeals from the order entered in the
Wyoming County Court of Common Pleas, which established her child support
obligation to Appellee, B.P. (“Father”). We vacate and remand with
instructions.
In its opinion, the trial court set forth the relevant facts and procedural
history of this appeal as follows:
[Father] and [Mother] are the natural parents of two (2)
minor children, H.P., whose date of birth is [in April 2002],
and M.P., whose date of birth is [in July 2008 (“Children”)].
On or about April 4, 2019, [Father] filed a complaint for
support with the Domestic Relations Section of [the trial
c]ourt. Following a conference with the Domestic Relations
Section of [the trial c]ourt on April 24, 2019, the Domestic
Relations Section found the following:
Both parties appeared for [the] conference. [Father]
is employed by [the Commonwealth of Pennsylvania]
with average gross wages of $3,183.09/bi-wk minus
$198.95 mandatory retirement & $35.02 union dues.
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[Father] provides medical coverage at a cost of
$52.26 (self & 3 children). [Mother] is employed part
time by the Meadows with average gross wages of
$647.76/bi-wk minus $9.72 union dues. She is also
employed part time by EDD with average gross wages
of $310.75/bi-wk. Total…wages of approximately
$25,000.00/annual.
[Mother] is [a licensed practical nurse]. Average
wage estimate in this geographical area is
$40,000/annual. [Mother] states she worked around
children’s schedule. [Mother] has M/A for children as
a secondary insurance. [Mother] shares 40% custody
(including summers, weekends & holidays).
Guidelines warrant support [in the amount] of
$266.00/mth for two children. [Mother] was advised
by her [attorney] to not sign agreement at
conference. Recommendation entered per guidelines.
[Father] to continue providing medical coverage.
[Mother] responsible for 25% of unreimbursed
medical exceeding $250/yr per child. Allowing
[Mother] time to secure full time employment. To
review in three months. $1,013.42 added to arrears
(recoupment of overpayment on PACSES
#950110474).
See Attached Report.[1]
Following the conference, an interim order of court was
entered on April 24, 2019 stating the following:
[B]ased upon the court’s determination that [Father’s]
monthly net income is $4,986.09 and [Mother’s]
monthly net income is $1,707.72, it is hereby ordered
that [Mother] pay…THREE HUNDRED SIXTEEN AND
00/100 Dollars ($316.00) a month…as follows: first
payment due of $266.00/MTH SUPPORT +
$50.00/MTH ARREARS.
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1 Although the trial court purportedly attached the Domestic Relations
Section’s report to its opinion, the report does not appear with the opinion in
the certified record on appeal.
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On May 14, 2019, [Mother] filed a request for a hearing de
novo. A hearing was held…on July 8, 2019.[2] Following
said hearing, [the trial c]ourt denied [Mother’s] exceptions.
(Trial Court Opinion, filed September 11, 2019, at 1-2) (internal quotation
marks omitted).
Mother timely filed a notice of appeal on July 31, 2019. On August 5,
2019, the court directed Mother to serve upon the trial judge a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).3
The trial court subsequently filed a responsive opinion.
Mother now raises three issues on appeal:
WHETHER THE COURT ERRED IN DENYING [MOTHER’S]
EXCEPTIONS TO THE APRIL 24, 2019, INTERIM ORDER OF
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2 Mother appeared with counsel at the hearing, who continues to represent
her on appeal. Father represented himself at the hearing, and he remains pro
se on appeal.
3 “[T]he judge may enter an order directing the appellant to file of record in
the trial court and serve on the judge a concise statement of the errors
complained of on appeal.” Pa.R.A.P. 1925(b). “The judge’s order directing
the filing and service of a Statement shall specify…that the Statement shall
be filed of record” and “that the Statement shall be served on the judge.”
Pa.R.A.P. 1925(b)(3)(ii), (iii) (emphasis added). Instantly, the trial court’s
Rule 1925(b) order stated that Mother “shall serve upon the undersigned trial
judge…a concise statement of the matters complained of on appeal.” (Order,
dated 8/2/19, at 1). The order did not specify that Mother also needed to file
of record her Rule 1925(b) statement, and the docket entries confirm that she
did not file her Rule 1925(b) statement in the trial court. Because the trial
court’s Rule 1925(b) order did not expressly instruct Mother to file the
statement, we decline to find waiver on this basis. See Berg v. Nationwide
Mut. Ins. Co., Inc., 607 Pa. 341, 351, 6 A.3d 1002, 1008 (2010) (holding
appellant did not waive issues by failing to serve court-ordered Rule 1925(b)
statement on trial judge where express language of court’s Rule 1925(b) order
did not instruct appellant to serve copy of statement on trial judge).
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COURT—UNALLOCATED BY FAILING TO CONSIDER THE
ACTUAL AMOUNT OF TIME THE MINOR CHILDREN WERE IN
THE PHYSICAL CUSTODY OF [MOTHER] FOR THE PURPOSES
OF CALCULATING AN AMOUNT ALLOTTED FOR CHILD
SUPPORT?
WHETHER THE COURT ERRED AS A MATTER OF LAW AND
ABUSED ITS DISCRETION WHEN CALCULATING THE
ACTUAL AMOUNT OF TIME THE MINOR CHILDREN WERE IN
THE PHYSICAL CUSTODY OF [MOTHER] FOR THE PURPOSES
OF CALCULATING AN AMOUNT ALLOTTED FOR CHILD
SUPPORT?
WHETHER THE COURT ERRED AS A MATTER OF LAW AND
ABUSED ITS DISCRETION IN FAILING TO CONSIDER THE
TOTAL OVERALL AMOUNTS OF INCOME AS TESTIFIED TO
BY [MOTHER] AS TO BOTH HER INCOME AND THAT OF
[FATHER] FOR THE PURPOSES OF CALCULATING CHILD
SUPPORT?
(Mother’s Brief at 11).
In her three issues,4 Mother argues her testimony at the de novo hearing
established that: (1) following the entry of a custody order on March 15, 2019,
Mother had primary physical custody of Children for at least five days in any
given week; and (2) Father’s partial physical custody of Children was limited
to his days off from work. Mother insists Father did not contest or contradict
Mother’s testimony regarding her amount of custody during his cross-
examination of Mother or during his own testimony. Under these
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4 Although Mother’s statement of questions involved lists three issues, the
argument section of her brief is not divided into three separate parts. See
Pa.R.A.P. 2119(a) (mandating that argument section of brief shall be divided
into as many parts as there are questions to be argued). Thus, we address
Mother’s claims together.
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circumstances, Mother submits the evidence of record did not support the trial
court’s determination that Mother had forty percent (40%) of physical
custody.
Additionally, Mother emphasizes her testimony that Father made
approximately $90,000.00 per year as a corrections officer. Mother also notes
the Domestic Relations Section allocated an income of $93,000.00 to Father.
Although Father testified that his actual gross income was less than both
amounts, Mother contends Father failed to submit any evidence to support his
own, self-serving testimony. Mother concludes this Court must reject the trial
court’s findings regarding her amount of physical custody and Father’s income.
We agree in part.
Our standard of review over child support orders is as follows:
When evaluating a support order, this Court may only
reverse the trial court’s determination where the order
cannot be sustained on any valid ground. We will not
interfere with the broad discretion afforded the trial court
absent an abuse of the discretion or insufficient evidence to
sustain the support order. An abuse of discretion is not
merely an error of judgment; if, in reaching a conclusion,
the court overrides or misapplies the law, or the judgment
exercised is shown by the record to be either manifestly
unreasonable or the product of partiality, prejudice, bias or
ill will, discretion has been abused. 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.
Kimock v. Jones, 47 A.3d 850, 854 (Pa.Super. 2012) (quoting Brickus v.
Dent, 5 A.3d 1281, 1284 (Pa.Super. 2010)).
“[U]nder Pa.R.C.P. 1910.11[,] a litigant has an absolute right to his/her
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day in court should it be desired.” Warner v. Pollock, 644 A.2d 747, 751
(Pa.Super. 1994). “A de novo hearing is full consideration of the case anew.
The reviewing body is in effect substituted for the prior decision maker and
redecides the case.” Id. at 750 (internal citations and quotation marks
omitted). “Once one of the parties demand[s] a [de novo] hearing each would
be entitled to litigate as if it were the first proceeding.” Id. See also
Capuano v. Capuano, 823 A.2d 995 (Pa.Super. 2003) (explaining under Rule
1910.11, any party to support action may file written demand for hearing de
novo before trial court after court has entered support order based upon
domestic relation officer’s recommendation; Rule 1910.11 grants parties
absolute right to de novo hearing on issues surrounding support order; at
hearing de novo, parties must be permitted to present evidence in support of
their respective positions).
Instantly, Mother testified that she had primary physical custody of
Children for at least five days per week during the months of June, July, and
August in 2019.5 (See N.T. Hearing, 7/8/19, at 9). Mother explained that
Father exercised his periods of partial physical custody on his days off from
work. (Id.) Mother also stated she had primary physical custody prior to
March 15, 2019, and that the amount of her custody was “like what it is now
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5Prior to Mother’s testimony, her counsel asked the trial court to take judicial
notice of the parties’ March 15, 2019 custody order. Although the trial court
agreed to counsel’s request, a copy of the order is not included with the
certified record on appeal.
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for the summer.” (Id. at 10). Finally, Mother estimated that Father’s gross
annual income “was almost $90,000.00 a year.” (Id. at 11).
During cross-examination, Father did not question Mother about her
periods of physical custody. (Id. at 12-16). Further, Father’s own testimony
did not dispute the percentage of Mother’s physical custody. (Id. at 19-20).
Rather, Father elaborated on his income: “I made $72,739.00, and it was
entered into Domestics that I made $93,000.00, and I have paperwork, my
W-2s.” (Id. at 19).
Following the hearing, the court reviewed the testimony and determined
Mother “was unable to give an exact custody schedule.” (Trial Court Opinion
at 3). Therefore, the court found “there was no evidence presented to show
that [Mother] had any more or less custody than forty percent (40%).” (Id.)
The court also acknowledged the parties’ conflicting testimony about Father’s
income, but it concluded that the Domestic Relations Section had utilized the
proper amount to calculate the parties’ support obligations. (Id.)
Regarding Father’s income, the record does not reveal that the trial
court ignored Mother’s testimony. The trial court opinion memorialized the
Domestic Relations Section’s findings regarding Father’s biweekly, average
gross wages, plus the costs for his retirement contributions, union dues, and
health insurance. (See Trial Court Opinion at 1). The amount of income
calculated by the Domestic Relations Section, which the court adopted,
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exceeded the amount proffered by Father at the hearing and appeared to
comport with Mother’s estimate.
Nevertheless, the record does not support the court’s finding regarding
Mother’s percentage of physical custody. Although Mother did not “give an
exact custody schedule,” she unequivocally testified that she had primary
physical custody of Children at the time in question. Father did not present
any evidence at the de novo hearing to contradict Mother’s testimony, and
there are no other grounds to sustain the trial court’s finding regarding
Mother’s amount of physical custody. See Kimock, supra; Warner, supra.
Accordingly, we vacate the support order on this basis and remand for a new
hearing. Upon remand, the parties can present evidence of any changed
circumstances that are relevant to the support calculations.6
Order vacated; case remanded for further proceedings. Jurisdiction is
relinquished.
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6 Our decision to remand for a new hearing is consistent with the initial
recommendation of the Domestic Relations Section, which contemplated a
review of the matter after three months. (See Trial Court Opinion at 2).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2020
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