Stipa, M. v. Giampaolo, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHELE M. STIPA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY D. GIAMPAOLO, :
:
Appellant : No. 1328 EDA 2019
Appeal from the Order Entered April 29, 2019
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): 17-01688,
PACSES: 344116864
BEFORE: PANELLA, P.J., STRASSBURGER, J.*, and COLINS, J.*
MEMORANDUM BY COLINS, J.: Filed: March 23, 2020
Anthony D. Giampaolo (Father) appeals, pro se, from the April 29, 2019
order dismissing his exceptions to a Support Master’s child support
recommendation and rendering the December 19, 2018 proposed order final.
We affirm.
Father and Michele M. Stipa (Mother) are the parents of a minor
daughter (Child), who was born on November 11, 2016. Both Father and
Mother are full-time employees of the First Judicial District of Pennsylvania,
Mother as an administrative secretary, Father as a civil case manager; Father
is a licensed attorney. Father challenges the need for entry of a child support
order and seeks a downward deviation from the amount of child support as
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* Retired Senior Judge assigned to the Superior Court.
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determined under the guidelines provided in Pennsylvania Rules of Civil
Procedure 1910.16-1 to 1910.16-5.1 Following a December 17, 2018 hearing,
the Support Master recommended that effective November 1, 2018, Father
pay $482.66 monthly in child support, plus $40 toward arrears; it was further
recommended that Father receive a credit for arrears for direct payments in
the amount of $2,700. Proposed Order of Support, 12/19/18. The Special
Master’s recommendation followed the support guidelines, with no deviations.
Father filed exceptions, alleging the Support Master did not consider
Mother’s other household income. Following an April 29, 2019 exceptions
hearing before the trial court, where Father argued the Support Master
considered neither Mother’s other household income or the age of Child, the
trial court denied Father’s exceptions. Trial Court Order, 4/29/19. This appeal
followed. Both Father and the trial court complied with Pa.R.A.P. 1925.
On appeal, Father presents the following questions for our review:2
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1 Mother filed a complaint for child support on 12/20/17. A Support Master’s
hearing was held on 6/6/18, and a proposed order was entered on 6/15/18.
Father filed exceptions on 6/29/18, and the trial court heard oral argument on
10/24/18. By order dated 10/24/18, the trial court remanded for a full hearing
on “level of support, income/earning capacity of the parties, additional needs,
and any related issues.” Both parties were required to bring proof of their
income and expenses to the hearing.
2 In his 1925(b) statement, Father states that he has raised “numerous issues
throughout this matter,” and purports to reserve all of them, “including but
not limited to” five numbered issues. In its 1925(a) opinion, the trial court
found three of these five numbered issues to be waived, as they were not
included in Father’s filed exceptions; the trial court expressed its difficulty
discerning Father’s fifth issue, but attempted to address its “sum and
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1. Did the lower court err in not requiring a showing of need
for the entry of an order for support?
2. Did the lower court err in not applying the age of Child and
other household income deviation factors from support
guidelines?
Appellant’s Brief at 6 (unnecessary capitalization omitted). When reviewing a
child support order:
[T]his 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, a 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.
Silver v. Pinskey, 981 A.2d 284, 291 (Pa. Super. 2009) (en banc) (citation
omitted). The fact-finder is entitled to weigh the evidence presented and
assess its credibility. Samii v. Samii, 847 A.2d 691, 697 (Pa. Super. 2004).
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substance,” to be Father’s “disapproval of the support calculation as it related
to his physical custody of Child.” Trial Court’s 1925(a) Opinion at 12. In his
pro se brief to this Court, Father presents only two questions for our review.
The “Summary of Argument” section of Father’s brief consists of thirteen and
one-half pages of single-spaced text, with no separation of issues; although
difficult to discern, we find that Father’s fifth 1925(b) issue is subsumed within
the first issue he presented to this Court, and we address it hereunder.
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Father’s first issue is the trial court’s alleged failure to require the
establishment of a need for entry of a support order. In its 1925(a) Opinion,
the trial court noted that in his filed exceptions, Father alleged only:
[T]he Support Master did not consider Mother’s “other
household income” or “the age of the child[“]; his request for
discovery on the question of “other household income” and
“request for an adverse inference on [Mother] for failing to
produce evidence of “other household income” was ignored;
the Support Master failed to grant a deviation under
Pa.R.Civ.P. Rule 1910.16(b)(3); and the Support Master
erred in considering the physical custody arrangement.
Trial Court 1925(b) Opinion (footnote omitted). The trial court correctly points
out that Father did not file a support exception regarding the alleged failure
to require establishment of need for the entry of a support order. Id.Pa.R.Civ.P. Rule 1910.12(f) sets forth the requirement that exceptions must
be filed within twenty days after receipt of the hearing officer’s report, and
states that “[m]atters not covered by exception are deemed waived unless,
prior to entry of the final order, leave is granted to file exceptions raising those
matters.” Pa.R.Civ.P. 1910.12(f). “[A] party who is dissatisfied with a
master’s report [must] file exceptions to the report, or waive any such
objections.” Lawson v. Lawson, 940 A.2d 444, 450 (Pa. Super. 2007).
Because Father did not raise this issue in his exceptions or seek leave to file
an additional exception, we find it to be waived on appeal.
Moreover, even if Father had not waived this issue, we would find it
devoid of merit. Father asserts that there was no need for a custody order
since he had provided support since before the Child was born, and was willing
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to continue to support Child without an order; he contends, with no legal
support, that the trial court erred by failing to establish the need for such
order. In his brief, Father includes an excerpt from a 1981 explanatory
comment set forth within the “Actions for Support” section of the Pennsylvania
Rules of Civil Procedure. Pa.R.Civ.P. 1910.1-1910.50. This explanatory
comment immediately precedes Pa.R.Civ.P. 1910.1, and includes a discussion
of diversionary procedures, explaining that if parties can agree on the need
for a support order and the amount, a domestic relations officer will prepare
an order embodying the agreement for submission to the court. The comment
continues, “[i]f the parties cannot agree, the court can, after consideration of
the recommendation, nevertheless enter an appropriate order, subject to the
right of either party to demand a hearing de novo before the court.”
Explanatory Comment – 1981. Mother initiated this action when she filed a
complaint for custody in December 2017, and the parties proceeded to a
Support Master’s hearing. There was no obligation on the part of the trial
court to require the showing of need to enter an order. Also, and as noted
above, Father’s argument that the support calculation as it related to his
physical custody of Child is arguably preserved; however, it is without merit.
The findings of the Support Master indicate that based upon evidence
presented by the parties, as well as the 11/1/18 custody order, an adjustment
for substantial physical custody of Father was warranted, and was made
effective as of that date. Report of Support Master at 6.
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Father’s remaining issue is his contention that the trial court erred in
failing to consider deviations from guideline amounts of support based upon
Mother’s other household income and the age of Child. Support actions are
governed by Pennsylvania Rules of Civil Procedure 1910.1-1910.50. Child and
spousal support are awarded pursuant to statewide support guidelines. 23
Pa.C.S. § 4322(a). The support guidelines determine the amount of support
that a spouse or parent should pay based on the parties’ combined monthly
net income, as defined in Pa.R.Civ.P. 1910.16-2. Rule 1910.16-2(a) refers to
the term “income,” as defined in the support law,3 and lists many of the types
of income included in the statute. There is a rebuttable presumption that the
amount of support determined from the guidelines is the correct amount of
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3 Pursuant to the definitions contained in 23 Pa.C.S. § 4302, income includes:
compensation for services, including, but not limited to, wages,
salaries bonuses, fees, compensation in kind, commissions and
similar items; income derived from business; gains derived from
dealings in property; interest; rents; royalties; dividends;
annuities; income from life insurance and endowment contracts;
all forms of retirement; pensions; income from discharge of
indebtedness; distributive share of partnership gross income,
income in respect of a decedent; income from an interest in an
estate or trust; military retirement benefits; railroad employment
retirement benefits; social security benefits; temporary and
permanent disability benefits; workers’ compensation;
unemployment compensation; other entitlements to money or
lump sum awards, without regard to source, including lottery
winnings; income tax refunds; insurance compensation or
settlements; awards or verdicts; and any form of payment due to
and collectible by an individual regardless of source.
23 Pa.C.S. § 4302.
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support to be awarded. Pa.R.Civ.P. 1910.16-1(d). Rule 1910.16-5 addresses
deviation from the support guidelines and sets forth factors to be considered
by the trier of fact in deciding whether to deviate from the amount of support
determined by the guidelines. Specifically, subsection 1910.16-5(b)(3)
provides that “other household income” may be a factor to consider, and
subsection 1910.16-5(b)(4) provides that “ages of the children” may be a
factor to consider. Pa.R.Civ.P. 1910.16-5(b)(3)and(4). Once a court has
consulted the guidelines, it “generally has reasonable discretion to deviate
from the guidelines if the record supports the deviation.” Ricco v. Novitski,
874 A.2d 75, 82 (Pa. Super. 2005). Factors such as “other household income”
may, in the trial court’s discretion, be considered as a basis for deviating from
the guidelines when it is necessary to avoid an unjust or inappropriate result.
Silver v. Pinskey, 981 A.2d at 296.
Here, the Support Master noted his use of the chart and schedule in Rule
1910.16-3 to determine Father’s basic child support obligation, and concluded
that the review demonstrated that the support guidelines are applicable and
no deviation therefrom was warranted. 12/17/18 Report of Special Master,
Conclusions of Law at 7. The Special Master made findings of fact specifically
with regard to “other household income,” stating that Mother “credibly
testified she resides with her parents,” and noting Mother’s testimony that her
father collects a pension, her mother collects social security benefits, and she
does not know the monthly amount of funds they collect. Id., Findings of Fact
at 3. The Special Master found that Mother’s “additional household income is
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not reason to deviate from the guideline amount of support.” Id. The trial
court set forth its findings regarding Mother’s household income and its
credibility determinations in connection with those findings:
Mother credibly testified to her household income. Mother
testified that she works full time as an administrative
secretary and presented proof of her bi-weekly earnings of
$1,833.96. Mother has no other income. Mother credibly
testified that she resides with her parents in Mother’s home.
Mother stated that her [f]ather collects a pension and her
[m]other collects social security benefits. Mother testified
that it is unknown as to the exact amount they collect.
Mother further testified that her parents do not contribute at
all towards the household expenses. Mother often paid her
parents to watch the Child. Mother testified that she is solely
responsible for the household utilities, which include gas,
water, electric, internet and cable, which total approximately
five hundred dollars per month.
Trial Court 1925(a) Opinion at 9 (citations to N.T. omitted). The trial court
opined that “[i]n the instant matter, there is no “other household income” to
consider. Id.The trial court also noted that during the Support Master’s hearing, both
parties testified as to the age of Child and expenses related to her upbringing
and care. Id. at 11. This included testimony that (i) Child is not enrolled in
school or extracurricular activities at age two; and (ii) Child has weekly costs
associated with food, clothing, diapers, and healthcare. Id. at 11-12. The
trial court concluded that, clearly, the Support Master was cognizant of Child’s
age and expenses when deciding whether to deviate from the guidelines;
furthermore, the trial court emphasized that Father was given the opportunity
to present evidence, at its 4/29/19 hearing on Father’s exceptions, as to how
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the Special Master failed to address the age of Child at the 12/17/18 hearing,
but failed to “delineate any reasons whatsoever.” Id. at 12.
We find no abuse of discretion here. The trial court determination, by
its 4/29/19 Order, to deny Father’s exceptions and make final the proposed
order of 12/19/18 is supported by the record, and we discern no manifest
unreasonableness or showing of partiality, prejudice, bias, or ill-will. We
therefore affirm.
Order affirmed.
President Judge Panella joins the Memorandum.
Judge Strassburger files a Concurring and Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/20
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