Sallustio, N. v. Mercer, E. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NICOLE SALLUSTIO IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELI MERCER
Appellant No. 659 EDA 2014
Appeal from the Order Entered February 7, 2014
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): 11-01564
Pacses #316112728
BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 14, 2014
Appellant Eli Mercer (“Father”) appeals from an order modifying
Father’s child support obligations for one minor child.1 After careful review,
we affirm on the basis of the thorough and well-reasoned opinion of the
Honorable Doris A. Pechkurow.
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1
Nicole Sallustio (“Mother”) does not cross-appeal, but she attempts to raise
an additional claim of error not raised by Father. She claims that the trial
court improperly deviated from the support guideline by using the
adjustments delineated in Pa.R.C.P. 1910.16-4(c)(2) since these
adjustments only apply where the parties have an equal custody
arrangement and the parties at bar have a substantial or shared custodial
arrangement. Mother waived this claim of error by failing to file a cross-
appeal. See Bullman v. Giuntoli, 761 A.2d 566, 580 (Pa.Super.2000)
(where appellee addresses issue on appeal not raised by appellant and not
addressed in cross-appeal, issue is deemed waived).
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The factual background of the instant matter is not material to our
disposition of the issue. The trial court aptly summarized the pertinent
procedural history as follows:
[Father] filed a Petition for Modification of
Support on April 3, 2013, to modify the support
obligation of $1,554.71 per month plus $35.54 on
arrears, which had been entered on May 18, 2012. A
hearing before the Master in Support was held on
June 20, 2013, and a proposed order was submitted
by the Master that [Father] pay $789.08 per month
for the support of one child, plus $35.00 per month
on arrears.
[Father] filed Exceptions on July 12, 2013,
whereby [Father] claimed, inter alia, that the
support order was unfair because of the respective
incomes of the parties and the similar custody
schedule for both parties. [Father]'s Exceptions were
granted in part and on November 5, 2013, the
proposed order was amended for [Father] to pay
$374.22 per month for the support of one child, plus
$30.00 per month on arrears. [Mother] filed a
Petition for Reconsideration on November 19, 2013,
which Petition was granted on December 3, 2013,
and the November 19th order was made an interim
order pending a full hearing.
On February 7, 2014, following the hearing on
reconsideration, the within order was entered that
[Father] pay a basic support obligation of $322.13
per month, plus his proportionate share of child care
and health insurance expenses, for a total support
obligation of $595.33 per month, plus $20.00 per
month on arrears.
Trial Court Opinion, 4/22/14 (“Trial Court Opinion”), at 1-2.
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On February 26, 2014, Father filed a timely notice of appeal and
concurrently filed a timely 1925(b) statement. On April 22, 2014, the trial
court issued an opinion pursuant to Pa.R.A.P. 1925(a).
Father raises the following claims for review:
I. Is $595.33 (plus $20 per month on arrears) a fair
monthly payment for one parent to make to the
other parent when the difference in custody is only 4
days per month?
II. Given the fair and nearly equal shared custody
schedule (March 21, 2013 Custody Order), should
[Father] be required to pay support to [Mother]?
III. Given that Mother's income is higher than Father's,
and that a fair and nearly equal custody Order was
awarded to the parties, should Father be required to
pay support to [Mother]?
IV. Given the fair and nearly equal shared custody
schedule, should the support Order of November 5,
2013 have been overturned on February 7, 2014 and
amount increased?
V. Do[es] the support calculation, and the variables
used in the calculation, that was made on February
7, 2014 by Honorable Judge Doris A. Pechkurow fit
the circumstances of this particular custody
situation?
Father’s Brief at 3. Father has waived the first and fourth issues by not
including these issues in his 1925(b) statement. See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement . . . are waived”);
Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 (Pa.Super.2007) (“[A]ny
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issue not raised in an Appellant's Rule 1925(b) statement will be deemed
waived for purposes of appellate review”).
The parties do not dispute that Father has a lower monthly income
than Mother. Father’s Brief at 7 (“[]Mother[] makes more money than
Father”); Mother’s Brief at 7 (referring to herself as the “economically
superior parent”). Based on this, Father claims that he should not be
obligated to pay child support. See Father’s Brief at 7. The thrust of Father’s
appeal revolves around three central issues: the custody schedule; the
parties’ respective incomes; and the overall methodology that trial courts
must employ in formulating a child support order. Since all of these issues
relate to whether the trial court directed Father to pay the proper amount of
child support, we address them together.
An appellate court may reverse a child support order only if the court
finds that the order cannot be sustained on any valid ground, Maue v.
Gilbert, 839 A.2d 430, 432 (Pa.Super.2003), or the lower court has
committed an abuse of discretion. Kraisinger v. Kraisinger, 928 A.2d 333,
341-42 (Pa.Super.2007). An “abuse of discretion” is not merely an error of
judgment. Kraisinger, 928 A.2d at 341-42, but must rest upon clear and
convincing evidence, Portugal v. Portugal, 798 A.2d 246, 249
(Pa.Super.2002). This Court has found an abuse of discretion where:
(1) insufficient evidence exists to sustain the child
support award;
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(2) the trial court, in reaching a conclusion, overrides or
misapplies existing law;
(3) the judgment exercised is manifestly unreasonable;
or,
(4) the result of partiality, prejudice, bias, or ill-will, as
shown by evidence on the record.
Kraisinger, 928 A.2d at 341-42.
“A support order will not be disturbed on appeal unless a trial court
failed to [properly] consider [] the requirements of the Rules of Civil
Procedure Governing Actions for Support, Pa.R.C.P. 1910.19 et seq., or
abused its discretion in applying these Rules.” Christianson v. Ely, 838
A.2d 630, 634 (Pa.2003) (quoting Ball v. Minnick, 648 A.2d 1192, 1196
(Pa.1994)). If the record demonstrates that the trial court has failed to
consider all factors relevant to an award of child support, the appellate court
should remand for a full evidentiary hearing. Gephart v. Gephart, 764 A.2d
613, 614-15 (Pa.Super.2000). Also, in reviewing a petition for a
modification of child support, we examine a finding of either a material and
substantial change in circumstances or no such change for an abuse of
discretion. Yerkes v. Yerkes, 824 A.2d 1169, 1171-72 (Pa.2003).
The Pennsylvania Rules of Civil Procedure 1910.1 et seq. govern
actions for support. In determining child support, the parties’ respective net
incomes must first be calculated. Id. The Rules provide for the calculation
of parties’ net incomes as follows:
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Rule 1910.16-2. Support Guidelines. Calculation
of Net Income
Generally, the amount of support to be awarded is
based upon the parties' monthly net income.
(a) Monthly Gross Income. Monthly gross income
is ordinarily based upon at least a six-month average
of all of a party's income. The term ‘income’ is
defined by the support law, 23 Pa.C.S.A. § 4302, and
includes income from any source. The statute lists
many types of income including, but not limited to:
(1) wages, salaries, bonuses, fees and commissions;
(2) net income from business or dealings in
property;
(3) interest, rents, royalties, and dividends;
(4) pensions and all forms of retirement;
(5) income from an interest in an estate or trust;
(6) Social Security disability benefits, Social Security
retirement benefits, temporary and permanent
disability benefits, workers' compensation and
unemployment compensation;
(7) alimony if, in the discretion of the trier of fact,
inclusion of part or all of it is appropriate; and
(8) other entitlements to money or lump sum
awards, without regard to source, including lottery
winnings, income tax refunds, insurance
compensation or settlements; awards and verdicts;
and any form of payment due to and collectible by
an individual regardless of source.
Pa.R.C.P. No. 1910.16-2(a). After ascertaining a party’s gross income, the
court deducts the following items from monthly gross income to arrive at net
income:
(A) federal, state, and local income taxes;
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(B) unemployment compensation taxes and Local
Services Taxes (LST);
(C) F.I.C.A. payments (Social Security, Medicare and
Self-Employment taxes) and non-voluntary
retirement payments;
(D) mandatory union dues; and
(E) alimony paid to the other party.
Pa.R.C.P. No. 1910.16-2(c)(1). The court inserts the net income figures into
a set formula depending on the parties’ combined net income and number of
children.
Rule 1910.16-4 (“the Rule”) contains the formula used to calculate the
obligor’s share of basic child support from the schedule in Rule 1910.16-3.2
The Rule requires the trial court to engage in a three-step process to
calculate the parties’ respective child support obligations. Id.
First, the trial court applies the formula in Part I of subsection (a) of
Rule 1910.16-4 to arrive at “Each Parent’s Monthly Share of the Basic Child
Support Obligation.” Here, using this formula, the trial court determined that
“[Father] has 45.64% of the combined $12,192.47 [] monthly net income of
the parties and [Mother] has 54.36%.” Trial Court Opinion, at 4.
Second, the trial court must make applicable adjustments for
substantial or shared child custody and additional expenses including, inter
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2
The parties have a combined monthly net income of $12,192.47. See Trial
Court Opinion, 4/22/2014, at 4. Accordingly, Pa.R.C.P. 1910.16-3.1(a),
dealing with “high income” cases in which the combined monthly net income
exceeds $30,000.00, is not implicated.
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alia, child care and health insurance expenses. See Pa.R.C.P. 1910.16-4(c)
(when child spends 40% or more of his time during year with obligor, a
rebuttable presumption arises that obligor is entitled to reduction in basic
support obligation to reflect this time); see also Pa.R.C.P. 1910.16-6
(“Additional expenses permitted pursuant to this Rule 1910.16-6 may be
allocated between the parties even if the parties' incomes do not justify an
order of basic support”).
Rule 1910.16-4(c)(1) provides:
Except as provided in subsections (2) and (3) below,
the reduction shall be calculated pursuant to the
formula set forth in Part II of subdivision (a) [titled
“Substantial or Shared Physical Custody Adjustment,
if applicable”] of this rule. For purposes of this
provision, the time spent with the children shall be
determined by the number of overnights they spend
during the year with the obligor.
Pa.R.C.P. No. 1910.16-4(c)(1). Rule 1910.16-4(c)(2) further provides:
Without regard to which parent initiated the support
action, when the children spend equal time with both
parents, the Part II formula cannot be applied unless
the obligor is the parent with the higher income. In
no event shall an order be entered requiring the
parent with the lower income to pay basic child
support to the parent with the higher income.
However, nothing in this subdivision shall prevent
the entry of an order requiring the parent with less
income to contribute to additional expenses pursuant
to Rule 1910.16-6. . . . In all cases in which the
parties share custody equally and the support
calculation results in the obligee receiving a larger
share of the parties' combined income, then the
court shall adjust the support obligation so that the
combined income is allocated equally between the
two households.
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Id. This subsection applies in instances of equal custody. Id. Citing this
subsection, as well as its discretion to deviate from the guidelines to avoid
an unjust result, the trial court adjusted Father’s support obligation in order
to avoid awarding Mother a larger share of the parties’ combined income.3
See Trial Court Opinion at 5-6; Id. at 6.
Third, the trial court must consider an enumerated list of factors to
determine whether to deviate from the support guidelines. These factors
include:
(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
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3
The trial court reasoned:
Under the guideline calculation proposed by the
Master, [Mother] was awarded 58.6% of the parties
joint income while she has 57.1% of custody time,
whereas [Father] was allocated 41.4% of the parties'
joint income, while he has custody for 43% of the
time. To achieve a proportionate allocation of
household income described in Rule 1910.16-
4(c)(2), this court applied an adjustment of $322.13
to [Father]'s basic support obligation (as opposed to
$205.69 used by the Master on line 12 of the
Support Guideline Calculation), resulting in a support
obligation where [Father]'s proportionate share of
the basic support obligation was 43%, correlating
with 43% of custody time he has with the child.
Trial Court Opinion, at 6.
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(4) ages of the children;
(5) the relative assets and liabilities of the parties;
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their
children;
(8) in a spousal support or alimony pendente lite
case, the duration of the marriage from the date of
marriage to the date of final separation; and
(9) other relevant and appropriate factors,
including the best interests of the child or
children.
Pa.R.C.P. No. 1910.16-5 (emphasis added). Based on its analysis of the
above-factors, the trial court may then deviate from the preliminary analysis
figures calculated in the first two parts of the child support calculation,
described supra. See McCarty v. Smith, 655 A.2d 563, 566
(Pa.Super.1995) (if a deviation is applied, it must be made after the
guideline amount is determined).
There is a rebuttable presumption that the support guidelines provide
the appropriate amount of support. See Pa.R.C.P. No. 1910.16-1(d); 23
Pa.C.S. § 4322(b). Our Supreme Court has explained:
The presumption is strong that the appropriate
amount of support in each case is the amount as
determined from the support guidelines. However,
where the facts demonstrate the inappropriateness
of such an award, the trier of fact may deviate
therefrom. This flexibility is not, however, intended
to provide the trier of fact with unfettered discretion
to, in each case, deviate from the recommended
amount of support. Deviation will be permitted only
where special needs and/or circumstances are
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present such as to render an award in the amount of
the guideline figure unjust or inappropriate.
Ball v. Minnick, 648 A.2d 1192, 1196 (Pa.1994).
Here, the trial court deviated from the guidelines under Rule 1910.16-
4(c)(2) based on its application of Rule 1910.16-5. Trial Court Opinion at 6.
The trial court explained:
In reviewing the guideline calculation formulas, this
court noted that subsection (c)(2) specifically
provides that, in the instance of an equally shared
custody arrangement, if the obligee has a higher
income than the obligor, the support obligation must
be adjusted so that the obligee does not receive a
larger share of the parties combined income: ‘In all
cases in which the parties share custody equally and
the support calculation results in the oblige[e]
receiving a larger share of the parties' combined
income, then the court shall adjust the support
obligation so that the combined income is allocated
equally between the two households.’ Id.Since the examples in subsection (c)(1) of Rule
1910.16-4 concerning substantial shared custody
only discuss instances where the obligor has a higher
income than obligee, it was not unreasonable to
conclude that in the instant situation, where the
parties have an arrangement just slightly less than
an equally shared arrangement, and obligor has a
lower monthly income than obligee, an adjustment
was appropriate so that obligee would not receive a
share of the parties combined income which is
greater than her share of custody, as would be
applicable in an equally shared custody
arrangement.
It cannot be concluded that the support
guidelines provide for an equal (and proportionate)
allocation of household income only where the
parties have equally shared physical custody, while
disallowing a deviation to achieve a proportionate
allocation of household income where a party has
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only slightly less than an equally shared physical
custody arrangement. Moreover, subsection (c)(1)
states that the formula in subsection (a) II is
applicable, except as provided in subsection (c)(2)
and (3), thus referencing the rationale in those
subsections.
***
This court has thus applied a deviation to the
Support Guideline Calculation submitted by the
Master, incorporating the instructions in Rule
1910.16-4 for equally shared custody arrangements
to avoid a higher allocation of income to
[Mother]/obligee than is consistent with her share of
custody. The court finds that this is a relevant
and appropriate consideration under Rule
1910.16-5(b)(9), the application of which
prevents an award which would be unjust, per
the standard of Rule 1910.16-1(d).
Trial Court Opinion at 5-6 (emphasis added).
The trial court further reasoned: “While the methodology was outlined
for use in equally shared custody arrangements, this court concludes that it
was appropriate to apply [the] same to [Father]’s substantially [equal]
custody arrangement to avoid an unjust result.” Trial Court Opinion at 7.
We have reviewed the transcripts, the briefs, the relevant law, and the
record as a whole and conclude that Judge Pechkurow’s opinion thoroughly,
comprehensively and correctly disposes of the issues Father raises on
appeal. In particular, Judge Pechkurow correctly determined that she had
discretion under Rule 1910.16-5(b)(9) and Rule 1910.16-1(d) to apply Rule
1910.6-4(c)(2) in the instant matter to avoid an unjust result, because
Father and Mother have nearly equal custody, and Father has a lower
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income. Trial Court Opinion at 5-6. Accordingly, we affirm on the basis of
Judge Pechkurow’s opinion and direct the parties to attach copies of said
opinion in the event of further proceedings in this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2014
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