Batterman, S. v. Batterman, C. ( 2021 )

J-A15012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SILVIA SANTO-BATTERMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHAD BATTERMAN :
:
Appellant : No. 1258 EDA 2020
Appeal from the Order Entered February 20, 2020
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): No. 17-01602,
PACSES Case No. 694116830
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 23, 2021
Chad Batterman (“Father”) appeals from the allocated support order
entered on February 20, 2020, wherein the trial court denied, in part, his
exceptions to the proposed support order directing him to pay $674.48 per
month for the support of two children and $338.43 monthly for alimony
pendente lite (“APL”) to Silvia Santo-Batterman (“Mother”).1 We affirm. 2
____________________________________________
1 Appellant timely filed his notice of appeal on June 9, 2020, in light of the
First Judicial District of Pennsylvania President Judge Administrative Order No.
34 of 2020, which prolonged the emergency extension of time to June 15,
2020, as authorized by the Pennsylvania Supreme Court’s Judicial Emergency
order entered on May 27, 2020.
2 As the order expressly allocated the support award between child support
and APL, only the award of child support is immediately appealable. See
Leister v. Leister, 684 A.2d 192 (Pa.Super. 1996) (en banc) (APL is not
appealable until all economic issues have been resolved by pending divorce
(Footnote Continued Next Page)
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Mother and Father married on November 29, 2014, and separated three
years later. The divorce is pending. Mother exercises primary physical
custody and sole legal custody of the two children that were born of the
marriage. As it relates to this appeal, Mother has sole authority over the
selection of a daycare provider. Father exercises partial physical custody on
alternating weekends and four hours of physical custody on the Thursday
evening that precedes a non-custodial weekend.
In December 2017, Mother filed a complaint for child support.3 The
matter proceeded to a support master for evidentiary hearings pursuant to
Pa.R.A.P. 1910.12 . On June 22, 2018, the trial court adopted the master’s
report and recommendation and entered a final child support order calculating
Father’s monthly child support obligation for the two children to be $686.00.
Approximately three months later, on October 1, 2018, Father filed a
petition to modify the June 22, 2018 support order. During the ensuing
evidentiary hearings, Father asserted, inter alia, that Mother should be
assessed a full-time earning capacity of $19.00 per hour based upon her work
experience and access to free child care. He also sought a downward deviation
____________________________________________
decree). Thus, Father must defer his appeal of the portion of the order
addressing the award of APL until after the economic claims are finalized.
3 In addition to the child support claims, Mother and Father filed dueling
petitions for APL. The trial court ultimately denied Father’s entreaty and
awarded Mother APL in the amount of $351.91 per month. See Support
Order, 6/22/18. As noted, we do not address any aspect of the APL awards
in this appeal.
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from the guideline support obligation pursuant to Pa.R.C.P. 1910.16-5, based
upon his substantial debt.
The support master rejected all aspects of Father’s claims and issued a
proposed order denying Father’s motion for modification. Father timely filed
exceptions challenging the master’s failure to recognize a change in
circumstances, Mother’s earning capacity, and Father’s debts. Upon review of
Father’s exceptions, the trial court granted Father’s exception insofar as the
court acknowledged a change in circumstances since May 2018, and remanded
for further hearings before a new support master. See Trial Court Order
3/29/19, at 1. The court directed the new support master to assess the
amount of Mother’s earning capacity, consider Father’s responsibility for the
children’s healthcare premiums, and receive additional evidence concerning
the availability of free childcare at the paternal grandparents’ daycare center.
Finally, the court directed the support master to consider Father’s significant
debt beyond its effect on Father’s employment or earning capacity, which the
court determined not been affected. Id.Following remand for the appointment of the new support master and
additional evidentiary hearings, on September 23, 2019, the new support
master assessed Mother a $350.00 monthly earning capacity and issued a
proposed order that partially granted Father’s petition to modify his existing
child support obligations and reduced it to $674.48 per month effective April
29, 2019. Stated succinctly, the master determined that Mother’s earning
capacity in any field involving children was impeded by the litany of unresolved
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allegations of child abuse that Father and the paternal grandmother had
reported to Childline4 implicating Mother as a perpetrator of child abuse, and
that Mother’s current earnings were restricted to intermittent catering jobs
that she worked when she did not have physical custody of the children. The
master also considered Mother’s role as the nurturing parent and reduced
Father’s guideline support obligation by ten percent pursuant to Pa.R.C.P.
1910.16-5(b)(1) based upon his unusual fixed obligations, i.e. excessive
debt.5
____________________________________________
4 ChildLine, a component of the Pennsylvania Department of Human Services,
is part of a protective services program that is designed to accept child abuse
referrals.
5 Pa.R.C.P. 1910.16-5 relating to the deviation from support guidelines states:
(a) Deviation. If the amount of support deviates from the
amount of support determined by the guidelines, the trier of fact
shall specify, in writing or on the record, the guideline amount of
support, and the reasons for, and findings of fact justifying, the
amount of the deviation.
(b) Factors. In deciding whether to deviate from the amount of
support determined by the guidelines, the trier of fact shall
consider:
(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(4) ages of the children;
(5) the relative assets and liabilities of the parties;
(Footnote Continued Next Page)
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Father timely filed exceptions challenging the calculation of his support
obligation based upon Mother’s imputed earning capacity of $350 per month
as a part-time employee, the master’s failure to consider Mother’s access to
free child care, his medical issues, or the significance of his extreme debt. He
also asserted that the master misstated the effective date of the modified-
support obligation as April 29, 2019, as opposed to the date that he filed the
petition for modification. Upon review of Father’s exceptions, the trial court
entered the above-referenced order that adjusted the effective date of the
modified support obligation to October 1, 2018, and adopted the substantive
aspects of the master’s recommendation. This timely appeal followed.
Father complied with Pa.R.C.P. 1925(b) raising several issues that he
restates on appeal as follows:
1. The [trial court] committed revisable e[rr]or by imputing
Mother's income at a mere $350.00 gross per month, instead [of]
imputing Mother with a full[-]time earning capacity.
____________________________________________
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their children;
(8) in a spousal support or alimony pendente lite case, the
duration of the marriage from the date of marriage to the date of
final separation; and
(9) other relevant and appropriate factors, including the best
interests of the child or children.
Pa.R.C.P. 1910.16-5(a),(b)(1)-(9).
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2. The [trial court] committed reversible error by allowing Mother
to rely upon the Nurturing Parent Doctrine, as Mother worked full
time prior to and after the birth of the parties[’] children and the
[extended family members,] who previously cared for the children
during that time, continue to be available to provide care while
the parties are working.
3. The [trial court] committed reversible error by failing to
consider the fact that Mother has full[-]time childcare, pre-school
and summer camp options including door to door transportation
available to her at no cost (and at a location within which Mother
previously worked at for years, and which the children have
previously and currently attended);
4. The [trial court] committed reversible error by failing to follow
[a prior] March 29, 2019 order on remand, which gave Mother a
full[-time] earning capacity.
5. The [trial court] committed reversible error by failing to deviate
more than 10% downward in light of Father’s extreme debt, which
was accumulated during the course of the marriage;
6. The [trial court] committed reversible error by ignoring the fact
that Paternal Grandfather offered Mother a full[-]time job at her
pervious [sic] employer where Mother worked for years in a
similar capacity as she had previously at a rate of [$]19/hr.
Father’s brief at 2 (emphasis in original). Mother did not file a brief.
At the outset, we observe that, to the extent that Father asserts in his
brief that the trial court erred in assessing his earning capacity of $36,000 in
calculating his support obligation, an amount that he stipulated to during the
master’s hearing, that issue is waived because it was never raised in the trial
court or the Rule 1925(b) statement. See Father’s brief at 22-23 (arguing
that the support order “must be overturned” due to his assessed earning
capacity of $36,000 per year); Pa.R.C.P. 1910.12.(f) (“Matters not covered by
exceptions are deemed waived[.]”); Pa.R.A.P. 302(a) (issues not raised in trial
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court are waived and cannot be raised for the first time on appeal); Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived”).
Accordingly, we do not address the merits of this issue.
We set forth our standard of review 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.
Summers v. Summers, 35 A.3d 786, 788 (Pa.Super. 2012).
As all but one of Father’s issues relate to the calculation and assessment
of Mother’s earning capacity, we begin with that component of Father’s
argument. Initially, we observe that, contrary to Father’s protestations, the
March 2019 trial court order that remanded the case for additional proceedings
before a new support master did not direct that Mother be assessed an
earning capacity commensurate with full-time employment. In reality, the
court found that the prior support master erred in determining that Mother
had no earning capacity. Indeed, the certified record bears out that the March
2019 order stated, “Mother has an earning capacity[, and that t]he Master
should address and assess the amount of Mother’s earning capacity.” Order
3/29/19 at 1. Thus, in assessing Mother’s earning capacity at $350.00 per
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month in light of her employment constraints and irregular employment
schedule, the support master complied with the remand order. As the record
belies Father’s assertion that the support master disregarded the March 2019
remand order, we reject Father’s claim of error on this basis.
The crux of Father’s remaining contentions relating to earning capacity
is that the trial court erred in calculating Mother’s earning capacity “at a mere
$350 gross per month, instead [of] imputing . . . a full[-]time earning
capacity.” Father’s brief at 24. He reasons that the sum does not account for
the availability of childcare at his parent’s facility and Mother’s work
experience and wages earned as a kindergarten teacher and customer service
representative prior to the marriage and at the family’s software firm during
the marriage. Id. 24-25. He also asserts that the record does not sustain
the conclusion that Mother cannot work in childcare based on his and paternal
grandmother’s several reports to ChildLine. Id. at 26.
Father makes additional references to Mother’s work history in
challenging the application of the nurturing parent doctrine, which recognizes
the value of the custodial stay-at-home parent in calculating child support. As
we previously reiterated, “In determining whether to expect a nurturing
parent to seek employment, the trial court must balance factors such as the
age and maturity of the child, the availability and adequacy of others who
might assist the custodial parent, and the adequacy of available financial
resources if the parent does remain at home.” Kraisinger v. Kraisinger,
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928 A.2d 333, 342 (Pa.Super. 2007). Instantly Father asserts that the
doctrine did not apply because Mother worked full time during the marriage,
the older child is preparing to start kindergarten, Mother recently placed the
children in daycare up to three days per week, and free daycare remains
available to the children at paternal grandparents’ facility. Father’s brief at
26-28. Finally, Father contends that the trial court erred in ignoring a
supposed offer from the paternal grandfather for Mother to work for him full
time earning $19.00 per hour.
In sum, Father posits that Mother’s prior work experience and salary
range and her present job opportunities and availability of child care did not
support the trial court’s assessment of a diminished earning capacity. For the
following reasons, we disagree.
Pursuant to Pa.R.C.P. 1910.16-2(d)(4), which permits the trial court to
impute an income equal to a party’s earning capacity, the trial court is directed
to engage the following considerations:
Age, education, training, health, work experience, earnings
history and child care responsibilities are factors which shall be
considered in determining earning capacity. In order for an
earning capacity to be assessed, the trier of fact must state the
reasons for the assessment in writing or on the record. Generally,
the trier of fact should not impute an earning capacity that is
greater than the amount the party would earn from one full-time
position. Determination of what constitutes a reasonable work
regimen depends upon all relevant circumstances including the
choice of jobs available within a particular occupation, working
hours, working conditions and whether a party has exerted
substantial good faith efforts to find employment.
Pa.R.C.P. 1910.16-2(d)(4).
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After a thorough review of the certified record, Father’s brief and the
pertinent law, we discern no error of law or abuse of discretion on the part of
the trial court as to Father’s claims regarding the assessment of Mother’s
earning capacity and we affirm this aspect of the child support order on the
basis of the cogent and well-reasoned analysis that the Honorable Diane
Thompson provided in addressing these arguments in her opinion entered on
October 19, 2020. See Trial Court Opinion, 10/19,20 at 8-17, 23-24.6
Specifically, Judge Thompson concluded, inter alia, that : 1) under the
circumstances this case, the record supported the master’s assessment of
Mother’s monthly earning capacity based upon the current constraints on her
ability to work with children and her intermittent employment in the service
industry when her children are not in her custody; 2) in accordance with the
nurturing parent doctrine, Mother’s value to the children as a stay-at-home
parent offsets a portion of her support obligation given the age of the children
and the parties’ practice of having Mother act as the primary caretaker; 3)
based upon the elevated level of conflict between Mother and the paternal
grandparents, Father’s offer of free child care at the grandparents’ facility is
hollow; and 4) the record does not support Father’s assertion that the paternal
grandfather offered Mother employment earning $19.00 per hour.
Accordingly, the certified record confirms that, upon considering the
relevant factors enumerated in Pa.R.C.P. 1910.16-2(d)(4), the trial court
____________________________________________
6 To the extent that the trial court opinion addressed additional issues that
Father did not assert on appeal, those matters are not before this Court.
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reasoned that Mother’s earning capacity should more accurately reflect her
current circumstances, notwithstanding her employment history when the
family was intact. As the trial court made its determination in light of Mother’s
training, work experience, earnings history and child care responsibilities as
mandated by Rule 1910.16-2(d)(4), we find no basis to disturb it.
Finally, we address Father’s argument that the trial court erred in failing
to apply more than a ten percent discount to his guideline child support
obligation based upon his extreme debt. Father reduced his entire argument
to two points: (1) the ten percent reduction is insufficient in light of his
assessed earning capacity of $36,000 per year; and (2) he “has testified in
detail regarding the extreme debt he is in.” Father’s brief at 30. Father’s
argument is wholly inadequate. As previously noted, the assessment of his
$36,000 annual earning capacity is not before this Court. Moreover, Father’s
bare contention that the ten percent deviation is an inadequate discount is not
grounds to disturb the factfinder’s determination that the deviation was, in
fact, sufficient. No relief is due.
Having found both that Father was not entitled to an additional deviation
from the support guidelines based upon his debt and that the certified record
sustained the finding that the trial court complied with Rule 1910.16-2(d)(4)
by stating the reasons for its assessment of Mother’s $350.00 monthly earning
capacity, we affirm the allocated support order as it relates to Father’s child
support obligation.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2021
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Circulated 07/29/2021 10:35 AM
IN THE COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
FAMILY COURT DIVISION
CHAD BATTERMAN, TRIAL COURT DOCKET NO. 17-01602 FILEFO
APPELLANT, PACSES CASE NO. 267116855 OCT .1 -,
•r l •' (1•jt
c,c: 31
V. ; l/i;lfY
SILVIA SANTO- BATTER MAN, SUPERIOR COURT OF PENNSYLVANIA
APPELLEE. DOCKET NO. 1258 EDA 2020
TRIAL COURT OPINION
Obligor Chad Batterman (hereinafter "Appellant"), appeals from atrial court order
entered on February 20, 2020, which granted, in part, and denied, in part, Appellant's
exceptions' to aproposed order entered by Master Wayne Bennett on September 23, 2019.
This court requests the Superior Court of Pennsylvania to affirm its order of February 20, 2020.
PROCEDURAL HISTORY
On October 1, 2018, Appellant filed apro se petition to modify an existing support
order 2,and requested that the trial court suspend his support payments without stating any
reasons for this request .3
1Appellant initially filed exceptions to Master Bennett's September 23, 2020, proposed order of support on
October 11, 2019. Appellant then filed amended exceptions to the same proposed order of support on February
18, 2020, the same day at the judicial hearing on the exceptions he had filed on October 11, 2019.
zThe previous support order was Master Bennett's proposed order of May 25, 2018, which granted Appellee's
complaint for child support and alimony pendent lite (filed December 15, 2017) and denied Appellant's petition for
alimony pendent lite (filed December 22, 2017). The same proposed order stated, in relevant part, that Appellant
"is to pay $686.00 monthly for the support of two (2) children, [C.B.] and [D.B.]; $351.91 monthly in alimony
pendent lite for the support of Obligee, plus $50.00 monthly toward the arrears and/or retroactivity." See Exhibit
A, attached hereto. The proposed order dated May 25, 2018, was entered as afinal order of court on June 22,
2018, as neither party filed exceptions.
3 Pa.R.C.P. No. 1910.19(a) states that "a petition for modification or termination of an existing support order shall
specifically aver the material and substantial change in circumstances upon which the petition is based."
1
On January 14, 2019, following amaster's hearing which took place on December 6,
2018 (addressing Appellant's petition to modify an existing support order), Master Kristen
Bozzuto, Esquire, entered aproposed order denying Appellant's October 1, 2018, petition.
On February 1, 2019, Appellant filed timely pro se exceptions to Master Bozzuto's
January 14, 2019, proposed order, raising the following issues, verbatim:
1. The Master erred in finding that no change in circumstances have
occurred since the May 2018 hearing and that Plaintiff/Mother
continues to have no earning capacity;
2. The Master erred by applying the nurturing parent doctrine in
determining that Plaintiff/Mother had no earning capacity;
3. The Master erred in failing to consider Defendant/Father's
substantial and increasing debt and pending lawsuits as abarrier
that presents Father from finding employment.
See Exhibit B, attached hereto.
On March 29, 2019 4,following ahearing on Appellant's exceptions, the Honorable
Michael Fanning entered the following order:
Support exceptions filed on 2/4/19, by Defendant are granted in part and denied
in part, as follows: the Court finds that there has been achange in circumstances
since May 2018. The Court finds that Mother has an earning capacity. The
Master should address and assess the amount of Mother's earning capacity. The
Master should also consider the cost of the children's health care, as covered by
Father. The Master shall also consider the availability of daycare for the children
and should receive further evidence with regard to the cost and or the non-cost
of the same. Further, the Master shall consider the substantial debt of Father,
however, the Court does not find that said debt interfere with Father's ability to
find employment/effect his earning capacity. Matter is remanded to anew
Master, date certain, 5/8/19 5,at 9:00 a.m. before Master Bennett, 13th Floor,
mail service to both parties and counsel.
See Exhibit D, attached hereto.
4 This same day, the same day the hearing on his exceptions (filed February 4, 2019) was scheduled, Appellant filed
amended exceptions which repeated the same claims as his February 4, 2019, exceptions but added the following
issue, verbatim: "The Master erred in failing to consider Father is paying for children's healthcare." See Exhibit C,
attached hereto.
sThis hearing date was continued and took place before Master Bennett on June 12, 2019.
2
On April 24, 2019, Appellant, despite being represented by counsel and despite already
having an open petition to modify an existing support order, filed apro se petition to modify an
existing support order which again asked the court to suspend Appellant's support payments. 6
Pursuant to Judge Fanning's order of March 29, 2019, hearings were held on Appellant's
October 1, 2018 petition to modify before Master Wayne Bennett on June 12, 2019 and
September 11, 2019. At these hearings both Appellant and Appellee testified and evidence was
presented. On September 23, 2019, Master Bennett entered aproposed order stating the
following, verbatim:
The petition to modify filed on 04/29/19 shall be hereby granted, as aslight
modification of the support order shall be warranted at this time. The obligor
shall pay $674.48 monthly for the support of two children and $333.43 monthly
for the support of spouse, Silvia, for atotal order amount of $1,007.91 monthly.
The obligor shall pay $50 monthly for the arrears owed. The effective date of this
order shall be 04/29/19. Amend wage attachments forthwith.
See Exhibit E, attached hereto.
On October 11, 2019, Appellant filed timely pro se' exceptions to Master Bennett's
proposed order of September 23, 2019, raising the following issues, verbatim:
1. The Master erred in finding that the effective for the Order of
Support was April 24, 2019 when in fact the underlying Petition to
Modify was filed on October 1, 2018 and any proposed order of
support should be retroactively applied from October 1, 2018
through the entry of the new interim order of support. Not only
does this directly impact Father's retroactive arrears credit, but it
also impacts the health insurance coverage expense and
unreimbursed medical percentages of each party and any credit/s
related thereto;
6 This filing created some confusion in the upcoming hearings (June 12, 2019 and September 11, 2019) on
Appellant's October 1, 2018 petition for modification of an existing support order. This is evident in the contrast
between Master Bennet's proposed order of September 23, 2019, which states "the petition to modify filed on
04/29/19 shall be hereby granted" and Master Bennett's master's report from September 23, 2019, which states
that the hearings were on Appellant's "petition to modify filed on 10/8/18."
'Appellant was represented by counsel at the time.
3
2. The Master erred by concluding that Mother's earning $350 gross
per month through her limited hours working for acatering
company was areasonable or appropriate earning capacity;
3. The Master erred by failing to attribute/impute Mother with afull
time earning capacity in light of the fact that she had full time
child care/pre-school/summer camp options available to her at no
cost;
4. The Master erred in failing to recognize that Mother has free
childcare available to her at all times and as aresult she is able to
work and earn substantially more income than $350 gross per
month,
5. The Master erred in failing to consider Father's attempts to file for
modification of support in the period in which his October 1, 2018
Petition to Modify was pending as well as his medical issues
impacting his ability to work;
6. The master erred in failing to deviate more than 10% downward
in light of Father's extreme debt;
7. The Master erred in failing to limit the duration of the Alimony
Pendente Lite Order in favor of Mother based upon the limited
duration of the parties' marriage and Mother's failure to timely
prosecute the divorce action.
See Exhibit F, attached hereto.
On February 20, 2020, following ahearing on February 18, 2020, on Appellant's
exceptions, filed October 11, 2019, to Master Bennett's proposed order of September 23, 2019,
the undersigned trial court judge entered the following order:
Obligor's exceptions to the proposed order issued by Master Bennett, Esquire on
09/23/2019, and timely filed by obligor on 10/11/2019, are granted in part and
denied in part following ahearing. This court thoroughly reviewed Master
Bennett's report, calculations, findings, notes of testimony, and exhibits. Master
erred in the filing date of the obligor's petition to modify support. Filing date is
10/01/2018, as indicated in the docket. The remaining exceptions to the
proposed order of support are denied. The proposed order of support shall be
made afinal order effective 10/01/2018. Obligor shall pay $674.48 monthly for
support of two children and $333.43 monthly for support (APL) of spouse, Silvia,
for atotal order amount of $1007.91 monthly. Obligor shall pay $50 monthly for
arrears owed. Effective date October 1, 2018. Amend obligor's wage
attachments forthwith.
See Exhibit G, attached hereto.
4
On June 10, 2020, Appellant filed this timely$ notice of appeal of the trial court's final
order of February 20, 2020. In his statement of matters complained of on appeal, filed
simultaneously with his notice of appeal, Appellant raised the following issues, verbatim:
1. The Judge committed revisable [sic] error by imputing Mother's income
at amere $350.00 gross per month, instead of imputing Mother with a
full time earning capacity.
2. The Judge committed reversible error by allowing Mother to rely upon
the Nurturing Parent Doctrine, as Mother worked full time prior to and
after the birth of the parties children (and only stopped upon parties'
separation), and the parties' families who previously cared for the
children during that time, continue to be available to provide care while
the parents are working.
3. The judge committed reversible error by failing to consider the fact that
Mother has full time childcare, pre-school, and summer camp options
including door to door transportation available to her at no cost (and at a
location within which Mother previously worked at for years, and which
the children have previously and currently attended).
4. The Judge committed reversible error by failing to limit the duration of
the Alimony Pendente Lite order in favor of Mother based upon the
limited duration of the parties' marriage and Mother's failure to timely
prosecute the divorce action.
5. The Judge committed reversible error by failing to follow Judge Fanning's
March 29, 2019 order on remand, which gave Mother afull earning
capacity.
6. The Judge committed reversible error failing to deviate more than 10%
downward in light of Father's extreme debt, which was accumulated
during the course of the marriage;
7. The Judge committed reversible error by failing to consider Father's
attempts to file for modification and/or suspension of support in the
period in which his October 1, 2018 Petition to Modify was pending as
well as his medical issues impacting his ability to work.
8. The Judge committed reversible error by ignoring the fact that Paternal
Grandfather offered Mother afull time job at her previous employer
where Mother worked for years in asimilar capacity as she had
previously at arate of $19/hour.
aParagraph 4of President Judge Idee Fox's Administrative Order No. 24 of 2020, addressing court closure due to
COVDID-19, states the following: Suspension of Time Requirements: The suspension of time requirements, time
limitations, or filing deadlines imposed by this Court's Orders in connection with the Judicial emergency will expire.
Legal papers or pleadings required to be filed between March 16, 2020 and June 15, 2020 shall be deemed to have
been filed timely if they are filed by the close of business on June 15, 2020.
5
9. The Judge committed reversible error by failing to use the February 12,
2018 custody order, when Father had Shared Legal Custody of both
children and instead used amore recent custody order and went outside
the 4corners of Father's original petition.
See Exhibit H, attached hereto.
On July 20, 2020, the Pennsylvania Superior Court issued the following rule to show
cause to Appellant, verbatim:
Appellant has filed this appeal from the February 20, 2020 allocated child and
alimony pendent lite ("APL")/spousal support order. First, this appeal appears to
be untimely. See Pa.R.A.P. 903 (a) (notice of appeal shall be filed within 30 days
after order is entered on the trial court docket); Pa.R.A.P. 108(b) (date of entry
of an order shall be the day on which the clerk makes the notation in the docket
that notice of entry of the order has been given as required by Pa.R.C.P. 236(b));
Valley Forge Center Assoc. v. Rib-!t/K.P., Inc., 693 A.2d 242 (Pa. Super. 1997) (this
Court is without jurisdiction to excuse the failure to file atimely notice of appeal
as the 30-day period for appeal must be strictly construed; untimely appeal
divests this Court of jurisdiction). Instantly, review of the PACSES docket reveals
that the order was entered the same date, February 20, 2020. Thus, the appeal
was required to be filed within thirty (30) days of February 20, 2020. However,
since the thirtieth day was Saturday, March 21, 2020, the appeal was required to
be filed no later than Monday, March 23, 2020. See Pa.R.A.P. Note (Pa.R.A.P. 107
incorporates by reference the rules of construction of the Statute Construction
Act of 1972, 1Pa.C.S. §§1901-1991. 1Pa.C.S. §1908(2) provides for the omission
of the last day of time which falls on Saturday, Sunday or legal holiday).
However, due to the Judicial Emergency in the State of Pennsylvania, the date to
file appellant's notice of appeal was extended by Superior Court order until May
11, 2020 and then further extended by the Philadelphia Court of Common Pleas
order of April 22, 2020, that extended the Judicial emergency "through close of
business on May 29, 2020." See In re: Continuation Of Judicial Emergency order
of April 22, 2020. Thus, appellant was required to file his appeal on Monday,
June 1, 2020 the date the Philadelphia trial court reopened. Nevertheless, the
appeal was not filed until June 10, 2020, nine (9) days late. As aresult, it does
not appear that this Court has jurisdiction over the February 20, 2020 order.
Second, even if the appeal had been timely filed, it does not appear that the
APL/spousal support portion of the order would be appealable because there
does not appear to be adivorce decree nor equitable distribution order entered
on the divorce docket. Indeed, the last entry on the divorce docket is dated
November 1, 2018. See Pa. R.A.P. 341(b)(1) (a final order is any order that
disposes of all claims and of all parties); Leister v. Leister, 684 A.2d 192 (Pa.
Super. 1996) (the difference between spousal support and alimony pendente lite
claims ,no matter if filed as part of adivorce action or separately, is negligible,
6
and neither is appealable until all economic issues have been resolved); Fried v.
Fried, 501 A.2d 211 (Pa. 1985) (issues are reviewable after entry of divorce
decree and resolution of all economic issues). Accordingly, appellant is directed
to respond within ten (10) days, in writing and copy all parties involved on your
reply, as to the timeliness of the appeal and the appealability of the APL/spousal
support portion of the February 20th order. Failure to respond to this directive
may result in dismissal or quashal of this appeal without further notice.
See Exhibit I, attached hereto.
Appellant responded to the Pennsylvania Superior Court's July 20, 2020 rule to show
cause on July 30, 2020. On July 31, 2020, the Pennsylvania Superior Court issued the following
order discharging their July 20, 2020 rule to show cause, verbatim:
In accordance with the Rule to Show Cause order filed on July 20, 2020 and
Appellant's responses, only the child support portion of the order will be
referred to the panel assigned to decide the merits of this appeal. The APL
portion of the order will only be appealable after both entry of the divorce
decree and resolution of all economic claims. See Pa. R.A.P. 341(b)(1) (a final
order is any order that disposes of all claims and of all parties); Leister v. Leister,
684 A.2d 192 (Pa. Super. 1996) (the difference between spousal support and
alimony pendente lite claims ,no matter if filed as part of adivorce action or
separately, is negligible, and neither is appealable until all economic issues have
been resolved); Fried v. Fried, 501 A.2d 211 (Pa. 1985) (issues are reviewable
after entry of divorce decree and resolution of all economic issues); Hrinkevich v.
Hrinkevich, 676 A.2d 237 (Pa. Super. 1996) (notwithstanding pending divorce
action child support orders are immediately reviewable). Moreover, in light of
the Pennsylvania Supreme Court's Judicial Emergency May 27, 2020 Order
paragraph two (2) providing that even though the statewide judicial emergency
shall cease as of June 1, 2020, the local emergency orders shall remain in full
force and effect, and appellant's response that the First Judicial District Of
Pennsylvania President Judge Administrative Order No, 34 of 2020 In re: Family
Court. Resumption of Operations. Update Protocols. Order of May 15, 2020
paragraph four (4) directs: Suspension of Time Requirements. The suspension of
time requirements or filing deadlines imposed by this Court's Orders in
connection with the Judicial Emergency will expire. Legal papers or pleadings
required to be filed between March 16, 2020 and June 15, 2020 shall be deemed
to have been filed timely if they are filed by the close of business on June 15,
2020. Accordingly, the Rule is discharged. However, appellant is advised that the
issues may be revisited by the panel assigned to decide the merits of this case
and both should be prepared to address, in appellant's brief or at the time of
oral argument, any concerns the panel may have concerning the jurisdictional
7
issues raised by this Court's Rule To Show Cause order. Please note that this is
not afinal determination as to the propriety of the appeal.
See Exhibit J, attached hereto.
ANALYSIS
This court concurs with the findings of the support master's report regarding the issues
raised by the Appellant on appeal and does not find that Master Bennett committed any errors
of law or reason.
The standard of review for support orders on appeal is gross abuse of discretion. The
Pennsylvania Superior Court has stated:
The amount of asupport order is largely within the discretion of the trial court,
whose judgement should not be disturbed on appeal absent aclear abuse of
discretion. An abuse of discretion is not merely an error of judgement, but rather
amisapplication of the law or an unreasonable exercise in judgement. Afinding
that the trial court abused its discretion must rest upon ashowing by clear and
convincing evidence, and the trial court will be upheld on any valid ground.
Kessler v. Helmick, 449 Pa. Super. 113, 672 A.2d 1380, 1382 (1996) (quoting
Griffin v. Griffin, 384 Pa. Super. 188, 558 A.2d 75, 77 (1989) (en banc )). For our
purposes, 'an abuse of discretion requires proof of more than amere error of
judgment, but rather evidence that the law was misapplied or overridden, or
that the judgment was manifestly unreasonable or based on bias, ill will,
prejudice or partiality.' Portugal v. Portugal, 798 A.2d 246, 249 (Pa. Super. 2002)
See also Dennis v. Whitney, 844 A.2d 1267, 1269 (Pa. Super. 2004), holding that:
A child support order will not be disturbed on appeal unless atrial court failed to
consider properly requirements of rules of civil procedure governing actions for
support or abused its discretion in applying rules; an "abuse of discretion" is not
merely an error of judgment, but if in reaching aconclusion the law is overridden
or misapplied, or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will, discretion is abused.
Additionally, the trial court may rely on the findings of the support master's report when
determining if aparty's claims on appeal are valid. "A master's report and
recommendation, although only advisory, is to be given the fullest consideration, particularly
8
on the question of credibility of witnesses, because the master has the opportunity to observe
and assess the behavior and demeanor of the parties." Childress v. Bogosion, 12 A.3d 448, 455-
56 (Pa. Super. 2011) (citing Moran v. Moran, 839 A.2d 1091, 1095 (Pa. Super. 2003) (citing
Simeone v. Simeone, 380 Pa.Super. 37, 551 A.2d 219, 225 (1988), aff'd, 525 Pa. 392, 581 A.2d
162 (1990)).
ISSUE I
The Judge committed revisable [sic] error by imputing Mother's income at amere
$350.00 gross per month, instead of imputing Mother with afull time earning
capacity.
No abuse of discretion occurred when the trial court accepted the Master's finding that
Appellee's earning capacity is $350.00 per month. On March 29, 2019, the Honorable Michael
Fanning remanded, in part, Appellant's exceptions to Master Wayne Bennett, ordering that
"the Court finds that Mother has an earning capacity. The Master should address and assess the
amount of Mother's earning capacity." See Exhibit D, attached hereto. After hearing extensive
testimony from both Appellant and Appellee at hearings on June 12, 2019, and on September
10, 2019, Master Bennet's concluded the following in his master's report of September 23,
2019:
Based upon the totality of the circumstances, and all relevant and appropriate
factors such as the child-care situation, it is found that the Obligee has no
additional earning capacity at this time. The master calculated the Obligee's
actual income from her current employer ($94.50 weekly) for support guidelines
purposes. This is due to the age of the subject children, the Obligee's prior work
experience, and the Obligee's current child care situation. The Obligee worked in
the past while managing her child care situation, but the Obligee was previously
in aunique situation as the co-owner of abusiness with the Obligor, and that
situation no longer exists. (emphasis added)
See Exhibit E, attached hereto, at p. 5.
9
At the February 18, 2020, hearing on Appellant's exceptions to Master Bennett's
proposed order of September 23, 2019, this court heard extensive evidence from Appellant's
attorney that added nothing new to the testimony that was given by both Appellant and
Appellee at the master's hearings on June 12, 2019, and September 10, 2019. As she had at the
master's hearings, at the February 18, 2020, hearing Appellee testified that she had sought
work in child-care but that was made near impossible as Appellant and his mother reported
Appellee for child abuse 17 times. N.T. 02/18/20, p. 61, II. 18-25, p. 62, II. 1-5.
Master Bennett's finding Appellee's earning capacity to be $350 amonth was based on
the catering jobs Appellee takes when she does not have custody of the children. Appellee
testified that she has an app that alerts her when caterings jobs are available and she takes jobs
when she does not have custody. N.T. 06/12/19, p. 16, II. 10-25, p. 16, II. 1-20. No abuse of
discretion occurred when the trial court concurred with the master's finding that Appellee has a
monthly income of $350.
ISSUE II
The Judge committed reversible error by allowing Mother to rely upon the Nurturing
Parent Doctrine, as Mother worked full time prior to and after the birth of the parties
children (and only stopped upon parties' separation), and the parties' families who
previously cared for the children during that time, continue to be available to provide
care while the parents are working.
The trial court did not commit an abuse of discretion in allowing Appellee to rely on the
nurturing parent doctrine. "The nurturing parent doctrine recognizes that acustodial parent
who stays at home and cares for achild does, in fact, support the child; in determining whether
to expect anurturing parent to seek employment, the trial court must balance factors such as
the age and maturity of the child, the availability and adequacy of others who might assist the
10
custodial parent, and the adequacy of available financial resources if the parent does remain at
home." Kraisinger v. Kraisinger, 928 A.2d 333. 342 (2007). See also Frankenfield v. Feeser, 672
A.2d 1347, 1352 (Pa. Super. 1996): "While trial court in determining parent's ability to
pay child support must primarily focus on earning capacity rather than actual earnings, court is
free to consider making exception to rule whenever parent chooses to stay home with minor
child, so long as relevant factors are considered."
According to the parties' current custody order of May 3, 2019 (See Exhibit K, attached
hereto), Appellee has primary physical and sole legal custody of the two subject children.
Appellant's custody is outlined as follows: "Father shall have partial physical custody of the
children from Thursday at 4:00 p.m. until Monday at 9:00 a.m. on the first, third, and fifth (in
months with five Saturday) weekends of the month. On weeks in which Father will not have
weekend custody, Father shall have additional partial physical custody on Thursday from 4:00
p.m. to 8p.m." Id.Master Bennett's report of September 23, 2019, states the following: "The Master finds
for the Obligee on the issue of placement in child-care at this time, as given the age 9 of the
subject children and other factors such as the determination made in custody proceedings, the
Master does not find that he has the authority to change what has been the ongoing practice
between the parties at this time. In keeping with the previous findings by Master Bozzuto, the
Master again hereby finds that it is in the best interest of the subject children if the Obligee
eThe children were born on October 20, 2015 (C.B.) and October 10, 2017 (D.B.), making them three years old and
one year old, respectively, at the time of the September 23, 2019 master's hearing.
11
continues her current child-care arrangements." Master's Report of 09/23/2019 at p. 5. See
Exhibit E, attached hereto.
No abuse of discretion occurred in allowing Appellee to rely on the nurturing parent
doctrine.
Regarding Appellant's claim that Appellee worked full time prior to and after the birth of
the parties' children, the testimony tells adifferent story. Appellee testified that while she did
work for Appellant's business during the course of their marriage (from 2014 to 2017), she was
never compensated:
Appellee's Counsel: Okay. Um, then after 2011, when you were
working at the school, where did you become next
employed at?
Appellee: Wait. So then Istarted working for my family's
(inaudible), just trying to —we were married and
decided to help him with his business. He needed
assistance.
Appellee's Counsel: And what was your, um, wages that you —when
you were hired by him to come to this —
Appellee: Zero.
Appellee's Counsel: And when did you —when did you start —when did
you start receiving wages?
Appellee: Inever did.
Appellee's Counsel: Did you receive aW-2?
Appellee: No.
Appellee's Counsel: Receive a1099?
Appellee: Idid not.
Appellee's Counsel: Did you receive cash payments?
Appellee: No.
N.T. 06/12/19 at pp. 35-37.
Additionally, it was established on cross-examination of Appellant by counsel for
Appellee that, prior to working full time for no compensation for Appellant's business and prior
to having children, Appellee was working as asubstitute teacher for $85 aday:
Appellee's Counsel: Okay. And you're —based upon the records that
12
you were able to dig up when she worked for
Council Rock, she was making about 10, 15 an
hour?
Appellant: No, that's not correct.
Appellee's Counsel: She was making $85 aday.
Appellant: Idon't know if that's when she was afull-time
substitute or that the per diem. There were two
different salaries that were —sorry, two different
checks that were submitted, one was when she
was afull-time substitute for (inaudible)
Elementary School, the other one was when she
was on per diem per day. Ibelieve she was at $115
or $120 aday when she was afull-time substitute.
When she was not full-time, she was $85 aday. I
don't know what that breaks down to hourly.
Appellee's Counsel: And she stopped working so that she could support
you in your business?
Appellant: She we could —correct, start business venture and
work full time.
Appellee's Counsel: Well, once she started working full time, you never
added as an owner to the business, right? Let me
ask this. What —how's the —how is your —your
business set up? Is it aLLC, an S-Corp (phonetic)?
Appellant: Uh, Idon't recall off the top of my head.
Appellee's Counsel: Each one of those, though it's not self —sole
proprietorship, correct?
Appellant: No, it's not.
Appellee's counsel: Okay. So when you —when she started working full
time, five, six days, you never added her as a
member to the LLC or as ashareholder to the S-
Corp, correct?
Appellant: She never wanted any -any part of it.
Appellee's Counsel: Okay. And she worked at least 40 hours or she was
there at least 40 hours aweek?
Appellant: Right, five, six days aweek with —
Appellee's Counsel: And you would agree with that —that the earning
capacity she earned while with you was probably a
good earning capacity for the court to consider,
correct?
Appellant: Incorrect. It's the same as mine was.
Appellee's Counsel: Okay. So how much did she earn in two —what was
her W2 for 2013?
Appellant: She's already testified to Master Bennett.
However, um, we are at both (inaudible). Uh, Silvia
13
was compensated in other ways, such as paying all
of her bills, uh, her cell phone, her college loan, uh,
our family vehicle, her half —
Appellee's Counsel: So how much was that?
Appellant: Thousands of do —thousands of dollars amonth
and Ihave credit card statements that we
submitted previously —
Appellant's Counsel: Slow down.
Appellant: -that —that will reinforce that the credit cards that
Silvia (inaudible) early were for her personal, and
there was some business on her personal credit
cards, not all business.
Appellee's Counsel: Can you estimate how much of the money that was
used to support her, uh, for purposes of an
equivalent salary? Iunderstand that you took
money out of the business to pay —
Appellant: Well, we were supporting —
Appellee's Counsel -your rent, right?
Appellant: -we were supporting ourselves with —with —with
—with the rent and the car payments so -
Appellee's Counsel: So if you —if you divide that in half, how much was
on behalf of Silvia?
Appellant: I'd have to —Idon't have that (inaudible) in front of
me.
N.T. 09/11/19 at pp. 168-172.
Further illuminating the nature of her work experience during their marriage, Appellee's
relevant testimony during the February 18, 2020, hearing on Appellant's exceptions went as
follows:
Appellee: Yeah, It's correct, Iwas ateacher. Iwas aper diem
substitute teacher up until 2011. 2011, Chad
wanted me to quit to help him with his start up, at which
time Idid through marriage help him with his start up. I
was compensated zero dollars for my work there. Once
the children were born, my 4-year-old now first, Idid work
at the company in and out. It was a10-minute walk. I
exclusively breastfed her, so Iwould either bring her to the
office with me for afew hours and work from home, as
well. My mother and his mother would also come to watch
them for afew hours. Iwould go to the office, come home,
they would leave. Those were the arrangements made.
14
Both mothers never watched both children. When Ileft, I
had aone-month old and a2-year-old. So both mothers —
The Court: When you left, what? Your —
Appellee: When Ileft —
The Court: -job?
Appellee: -the marriage.
The Court: Okay.
Appellee: Yeah. They were never watched —they never watched two
children alone. Because at that time, Iwas also
breastfeeding exclusively my newborn. So when Chad says
that Iwas at the office, Iwas, with anewborn attached to
me with aplaypen at the office. So that was the job
arrangements. Iwas in and out feeding and then Iwould
run home with the child at all times. They were never
watching the two children at that time. Obviously, our
plans changed as we got married and had kids. There —
after Ileft, there was no support given by Chad.
N.T. 02/18/20 at pp. 57-58.
Because the last time that Appellee worked as ateacher was as asubstitute teacher
paid on aper-diem basis in 2011, it was reasonable for Master Bennett not to include this work
experience as part of Appellee's contemporary earning capacity. As the record reveals,
Appellee's work experience as ateacher was in 2011, three years prior to the parties' marriage,
and Appellee was never employed as afull-time teacher. N.T. 09/11/20 at p. 49, I1. 3-4.
With regards to Appellant's statement that the parties' families are allegedly available
to take care of the children so that the parties can work full time, this element to the instant
issue is moot. No members of the parties' families are parties to this support action nor the
parties' custody action. No relatives of either Appellant or Appellee testified at any of the
hearings relevant to the instant appeal about their willingness or availability in terms of caring
for the parties' children. As such, this element of this issue will not be considered.
15
ISSUE III
The judge committed reversible error by failing to consider the fact that Mother has
full time childcare, pre-school, and summer camp options including door to door
transportation available to her at no cost (and at alocation within which Mother
previously worked at for years, and which the children have previously and currently
attended).
No abuse of discretion occurred because the trial court, as well as Master Bennett, did
consider the fact that Appellee has full time child-care, pre-school, and summer camp options
including door to door transportation available to her at no cost at facilities owned and
operated by Appellant and his family.
Appellant testified that, when the children are in his custody, he does take them to his
family's camps and educational facilities. N.T. 09/11/19, pp. 86-87. However, the following
exchange occurred during the master's hearing on June 12, 2019:
Appellee's Counsel: Now, with respect to, uh, childcare, you heard Mr.
Steerman, uh, in his opening arguments, as well as
in prior hearings that, uh, father's daycares are, uh,
open for —for you to send the kids free of charge
so you can work, earn money (inaudible) and that
childcare, and that will be through the entire year.
Appellee: Correct.
Appellee's Counsel: And have you accepted that offer?
Appellee: No.
Appellee's Counsel: Why not?
Appellee: Um, this is just areally extremely high conflictlo,
um, custody, divorce, um, everything. So, it's been
10 To illustrate the contentious nature of the parties' custody proceedings, their current custody order of May 3,
2019, in case number OC1701602, states that "Paternal Grandmother shall not be within one-hundred (100) feet of
any custody exchange" and that "Father has committed numerous violations of prior interim custody orders and is
cautioned that this custody order must be complied with. Violations of the order may result in civil contempt
sanctions, including but not limited to fines, attorney's fees, and incarceration. Father is reminded that withholding
the children from Mother, repeated lateness to custody exchanges, and name-calling during custody exchanges
shall be considered violations of this order." Additionally, between the dates of February 12, 2018, and May 3,
2019, atotal of sixteen orders were entered in OC1701602 that addressed issues of custody between the parties.
This number does not include the numerous administrative orders that were also entered in that time period.
16
really difficult to deal with Chad a—as well as his
parents and he's become —he's been found in
contempt numerous times. Um, his parents have
been involved in alot of the situations where they
left, um, in the vehicle with my children. They've,
um, admitted to holding on to my children despite
acourt order telling them to release them to me.
Um, there's been warrants, he's been found in
contempt, he's been charged, he's been —"
Appellee's Counsel: When you say charged, what do you mean
charged?
Appellee: Uh, sorry, I
—attorney fees as well as court fines. I
—
at least $17,000 at this point, um, dollars and, um,
uh, uh, his time's been suspended with the
children. Just all of those that have led up to where
the court order is now and giving me legal. 1
just
don't feel it's astable environment for the
children. I
just —I'm looking for something neutral.
N.T. 06/12/19 at pp. 43-45.
Additionally, the following exchange occurred at the trial court's hearing on February
18, 2020:
The Court: Can you respond to the argument that Father sets
forth that you have free child care available to you?
Appellee: Right. Ihave sole legal custody of the children.
Besides this, there is avery high conflict custody
case still happening. So his family, who owns that
school, is also involved.
N.T. 02/18/20 at p. 64, 11.6-15.
No abuse of discretion occurred because the trial court did, in fact, consider the factors
that Appellant is alleging the court did not consider.
ISSUE IV
The Judge committed reversible error by failing to limit the duration of the Alimony
Pendente Lite order in favor of Mother based upon the limited duration of the parties'
marriage and Mother's failure to timely prosecute the divorce action.
17
Pursuant to the Pennsylvania Superior Court's order of July 31, 2020, which discharged
their July 20, 2020 rule to show cause, issues concerning alimony pendente lite will not be
considered on this appeal:
In accordance with the Rule to Show Cause order filed on July 20, 2020 and
Appellant's responses, only the child support portion of the order will be
referred to the panel assigned to decide the merits of this appeal. The APL
portion of the order will only be appealable after both entry of the divorce
decree and resolution of all economic claims. See Pa. R.A.P. 341(b)(1) (a final
order is any order that disposes of all claims and of all parties); Leister v. Leister,
684 A.2d 192 (Pa. Super. 1996) (the difference between spousal support and
alimony pendente lite claims, no matter if filed as part of adivorce action or
separately, is negligible, and neither is appealable until all economic issues have
been resolved); Fried v. Fried, 501 A.2d 211 (Pa. 1985) (issues are reviewable
after entry of divorce decree and resolution of all economic issues); Hrinkevich v.
Hrinkevich, 676 A.2d 237 (Pa. Super. 1996) (notwithstanding pending divorce
action child support orders are immediately reviewable).
See Exhibit J, attached hereto.
ISSUE V
The Judge committed reversible error by failing to follow Judge Fanning's March 29,
2019 order on remand, which gave Mother afull earning capacity.
The trial court did not commit an abuse of discretion because Judge Fanning's March 29,
2019, order remanding Appellant's exceptions to Master Bennett did not give Appellee "full
earning capacity." Judge Fanning's March 29, 2019, order states the following, verbatim:
Support exceptions filed on 2/4/19, by Defendant are granted in part and denied
in part, as follows: the Court finds that there has been achange in circumstances
since May 2018. The Court finds that Mother has an earning capacity. The
Master should address and assess the amount of Mother's earning capacity.
The Master should also consider the cost of the children's health care, as
covered by Father. The Master shall also consider the availability of daycare for
the children and should receive further evidence with regard to the cost and or
the non-cost of the same. Further, the Master shall consider the substantial debt
of Father, however, the Court does not find that said debt interfere with Father's
ability to find employment/effect his earning capacity. Matter is remanded to a
18
new Master, date certain, 5/8/19 11 ,at 9:00 a.m. before Master Bennett, 13th
Floor, mail service to both parties and counsel. (Emphasis added.)
See Exhibit D, attached hereto.
Judge Fanning found that mother had an earning capacity and directed Master Bennett
to assess the amount of that earning capacity. Master Bennett assessed that amount,
reasonably, at $350 amonth. It is not the trial court's jurisdiction to determine the earning
capacity.
ISSUE VI
The Judge committed reversible error failing to deviate more than 10% downward in
light of Father's extreme debt, which was accumulated during the course of the
marriage
No abuse of discretion occurred because the Master deviated just 10% downward in
Appellant's support obligation due to Appellant's debt. The trial court determined that the
Master did not err in the amount of deviation. Pa.R.C.P. No. 1910.16-5 states the following:
(a) Deviation. If the amount of support deviates from the amount
of support determined by the guidelines, the trier of fact shall specify, in writing
or on the record, the guideline amount of support, and the reasons for, and
findings of fact justifying, the amount of the deviation.
Note: The deviation applies to the amount of the support obligation and
not to the amount of income.
(b) Factors. In deciding whether to deviate from the amount
of support determined by the guidelines, the trier of fact shall consider:
(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(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 aspousal support or alimony pendente lite case, the duration of the
marriage from the date of marriage to the date of final separation; and
11 This hearing date was continued and took place in front of Master Bennett on June 12, 2019.
19
(9) other relevant and appropriate factors, including the best interests of
the child or children.
Master Bennett heard testimony about Appellant's debt at the September 11, 2019,
master's hearing, including this exchange:
Appellant's Counsel: Okay. Now, can you tell Master Bennett, um, what
your current status is with regard to debt that you
owe?
Appellant: Um, it's about at least under $800,000. Um, Iwas
recently informed that there is another lawsuit as
of amonth ago pending against me with Bank of
America or Cap —Bank (inaudible) for Capital One.
Um, I'm —haven't been served that, so I'm not
aware of it, but whenever there's alawsuit, you get
-you get the letters from (inaudible), the lawyers
for defense. As that's how I'm aware of that. So
that's two more, um —two more lawsuits. Um,
there are an exuberant amount of —between
attorneys' bills and every other type of bill, um —
there's —regarding the debtness (sic).
Appellant's Counsel: You answered (inaudible). And you previously
produced documentation that was referenced by
Master Bozzuto in her prior hearings, correct?
Appellant: Yes.
Appellant's Counsel: And, uh, has there been any substantial changes in
regards to the amount of debt that you had back
in, uh, May of 2018 and December —but really just
December of 2018?
Appellant: Yes.
Appellant's Counsel: What, if anything, has changed other than what
you've just testified about?
Appellant: The le —well, six to December?
Appellant's Counsel: Yes.
Appellant: Um, the two —the two new lawsuits —
Appellant's Counsel: Okay.
Appellant: -that are there. Um, then there was —Ibelieve
there's an —it's probably —I
—Icame up under
$80,000 worth of debt that, you know, in order to
pay counsel, you know, each counsel for each
lawsuit case, they're asking for $10,000 retainers.
That's another $20,000 that Ido not have. Um, and
there's no income that Iam making.
N.T. 09/11/19 at pp. 102-103.
20
Details about Appellant's debts became decidedly less clear on cross examination:
Appellee's Counsel: How much was the most recent loan you got from
you father?
Appellant: Idon't recall.
Appellee's Counsel: Do you have the loan documents? Do you have any
loan document between your parents and you?
Appellant: They were sub —they were submitted Ibelieve May
of 2018, the loan documents.
Appellee's Counsel: And is it —is it an open loan?
Appellant: Idon't —how do Iknow?
Appellee's Counsel: Like a—like the —a, uh, home equity line of credit,
like, you have $100,000 and you can tap it
whenever you want to.
Appellant: It's whatever the loan document says. It's got the
number of the loan.
Appellee's Counsel: You don't know?
Appellant: Idon't recall.
Appellee's Counsel: You're up to you think $800,000. Is that just the
indebtedness to your family or is that including
credit cards and everything else?
Appellant: Idon't recall the breakdown, but Iknow it was
testified to previously.
Appellee's Counsel: I'm asking you now, sir.
Appellant: And I'm explaining to, Iwas prepared when I
testified to answer that question, and I'm not
prepared to answer that question.
Appellee's Counsel: You —this order is for the court to consider the
substantial debt of Father —
Appellant: Right.
Appellee's Counsel: -which is what you testified to previously?
Appellant: Well, you're asking me questions Idon't —
Appellee's Counsel: You renamed [sic] it for the master to consider the
substantial that [sic] of Father. Did you come with
any updated documents as to this alleged $800,000
debt?
Appellant: Ibelieve it was submitted previously —
Appellee's Counsel: So the answer's no.
Appellant: No.
N.T. 09/11/19 at pp. 183-85.
21
Despite Appellant failure to produce any exhibits related to the debt he testified to at
either master's hearing, Master Bennett found Appellant credible and stated the following in
his Master's Report of September 23, 2019:
The amount of fixed obligations and needs of the Obligor are so unusual or
extraordinary as to warrant adownwards deviation from the support guidelines
at this time pursuant to Rule 1910.16-5(b)(1). Pursuant to his Honor's Order the
Master considered the Obligor's substantial debts and obligations, and found the
Obligor's testimony with this issue to be credible. While these debts to (sic) not
override the Obligor's child support obligations, the Master hereby finds that a
downwards deviation of 10% on the child support order and 10% on the spousal
support order is warranted at this time.
See Exhibit E, attached hereto, at p. 7.
No abuse of discretion occurred when the trial court accepted Master Bennett's
reasoning and application of adownward deviation to Appellant's support obligation in the
amount of 10%.
ISSUE VII
The Judge committed reversible error by failing to consider Father's attempts to file
for modification and/or suspension of support in the period in which his October 1,
2018 Petition to Modify was pending as well as his medical issues impacting his ability
to work.
The trial court committed no abuse of discretion with regards to this issue. According to
the docket, Appellant filed additional petitions to modify on April 24, 2019, and November 6,
2019. Regardless, however many petitions to modify an existing support order Appellant filed
while apetition to modify an existing support order was already pending is not relevant to the
instant appeal. The November 6, 2019, petition raised the issue of alleged disabilities that have
impacted Appellant's ability to work, but the initial master's hearing on that petition was not
until March 10, 2020, which is after February 20, 2020, the date of the order from which this
22
appeal was taken. No exhibits were presented regarding Appellant's alleged inability to work at
any of the hearings relevant to this instant matter and the only testimony went as follows:
Appellant's Counsel: And when you say you're not working currently,
what, if anything, prevents you from working
currently?
Appellant: Um, the injuries that I've had since January of
2019. I've been attempting file, uh, change in
circumstances, but the, um, division here will not
allow me to file that, and amendment to that until
—as this hearing was passed —this hearing was
pending, um, and then the drugs pending —hearing
was pending. So I've had, uh, two different
accidents that have —that have affected me in my
ability to work as well as verified doctor, physician,
or physician verification forms, um, numerous
MRIs, numerous physical therapy appointments —
Appellee's Counsel: Just —we would —we would —on the record, this is
not an issue for the court.
Appellant's Counsel: I'll move on.
N.T. 09/11/19 at pp. 104-105.
This issue is not proper for consideration in the instant appeal.
ISSUE VIII
The Judge committed reversible error by ignoring the fact that Paternal Grandfather
offered Mother afull time job at her previous employer where Mother worked for
years in asimilar capacity as she had previously at arate of $19/hour.
No abuse of discretion occurred with regards to this issue because no testimony was
ever offered with regards to Paternal Grandfather's offering Appellee ajob at the rate of $19.00
an hour. Paternal Grandfather never testified at any hearing relevant to this appeal.
Additionally, Appellee never testified that she was ever paid $19 an hour by Appellant's family.
Testimony regarding Appellee getting paid $19 an hour by Appellant's family was limited to the
following:
23
Appellant: She always needed to work, um, cause she needed money
as did I. Uh, she worked, uh, as afull time substitute
teacher at (inaudible) Elementary for ayear as well as I
believe one of the —another elementary school in
Newtown. Um, she also worked for our school, uh, the
Wonder —(inaudible) school, the Wonderkey School in
Blue Bell, Pennsylvania for ayear as the kindergarten
teacher, full-time kindergarten teacher, and, uh, which she
was —(inaudible) she was getting at least $19 an hour, and
she also worked, um for our —um, my family's camps,
Sesame Rockwood Camps. Uh, she did social media, she
did marketing, digital marketing, uh, e-mail, graphic
design, uh, customer service, uh, uh, database
management, such as Filemaker Pro, and graphic design,
such as, uh, Adobe Acrobat, InDesign, um, and, um, uh,
Photoshop. So when —when she —when we were working
together, she worked for my company, she's work five or
six days aweek with me.
N.T. 09/11/19 at pp. 74-75.
Appellant presented no evidence to support his claim of the $19.00 an hour job offer or
to support his testimony about Appellee being paid that much in the past by his family. Master
Bennett acknowledged Appellant's testimony in his report from September 23, 2019 (See
Exhibit E, attached hereto, at p. 5: "The Obligor testified under direct questioning that the
Obligee worked for his parents' company doing various things such as marketing, graphic
designing, etc., and that she was earning as much as $18 an hour."), but concluded the
following:
Based upon the totality of the circumstances, and all relevant and appropriate
factors such as the child-care situation, it is found that the Obligee has no
additional earning capacity at this time. The master calculated the Obligee's
actual income from her current employer ($94.50 weekly) for support guidelines
purposes. This is due to the age of the subject children, the Obligee's prior work
experience, and the Obligee's current child care situation. The Obligee worked in
the past while managing her child care situation, but the Obligee was previously
in aunique situation as the co-owner of abusiness with the Obligor, and that
situation no longer exists.
Id.24
No abuse of discretion occurred where no evidence of ajob offer to Appellee was
presented for the trial court to consider.
ISSUE IX
The Judge committed reversible error by failing to use the February 12, 2018 custody
order, when Father had Shared Legal Custody of both children and instead used a
more recent custody order and went outside the 4corners of Father's original
petition.
The trial court did not commit an abuse of discretion because the February 12, 2018,
custody order was not relevant to Appellant's petition to modify an existing support order filed
on October 1, 2018. At the time of the master's hearings on June 12, 2019, and September 11,
2019, afinal custody order (including full discussion of custody factors pursuant to 23 Pa.C.S. §
5328) granting Appellee sole legal custody had been in effect as of May 4, 2019. This is the
order that was relevant to Master Bennett's proposed support order of September 23, 2019.
This court did not go outside of the "four corners" of Appellant's original petition to modify
support.
CONCLUSION
For the foregoing reasons, this court requests the Superior Court of Pennsylvania to
dismiss Appellant's appeal and to affirm the trial court's final support order of February 20,
2020.
BY THE COURT:
DATE: ,
" Alz e)
DIANE THOMPSON, J.
25