E.J.H. v. L.D.H. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
E.D.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
L.D.H. : No. 1711 EDA 2020
Appeal from the Order Entered July 24, 2020
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2017-15205-172,
PACSES # 383116674
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 7, 2021
E.D.H. (“Father”) appeals from a child support order. He argues the
court did not accurately calculate income for L.D.H. (“Mother”), erred in
denying a mortgage adjustment, and erred in awarding Mother counsel fees.
We affirm.
Father and Mother were married in 2009. In 2017, Mother filed a
Complaint in Divorce. Mother and Father have two minor children and share
joint custody. The parties agreed to a child support and alimony pendente lite
order, which was entered in October 2017.
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* Former Justice specially assigned to the Superior Court.
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In August 2018, Mother filed a petition to modify.1 In a November 2018
recommendation and order, a Support Hearing Officer directed Father to pay
$886.53 per month to Mother,2 Father filed exceptions. Following a hearing,
the court denied most of the exceptions. It rejected his claims that Mother
should be bound by the net income agreed to in the prior order and that her
income should be based on earning capacity. The court explained it was not
an “earning capacity case,” but rather an actual income case, and Mother is
not underemployed. Order, filed Mar. 4, 2019, at 1. The court also held that
Mother’s 2018 federal tax refund should be used to calculate Mother’s income,
but that Mother had not filed her taxes prior to the hearing with the Support
Officer. Id. at 2. The court found that the Support Officer had discretion
whether to make a downward adjustment due to the mortgage obligation, but
that it had not stated its reasons for not applying an adjustment. Id. at 3. The
court thus remanded to the Support Officer for recalculation of Mother’s net
income and for the Officer to place on the record her reasoning for denying
the mortgage adjustment:
1. Father’s exceptions are DENIED except for paragraphs 2
and 3 of this order.
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1 Both Mother and Father filed petitions to modify prior to August 2018, which
the court denied in November 2018 because the parties failed to prove a
material and substantial change of circumstances.
2 This award consisted of $1,010.82 per month for two children, less $157.45
for medical insurance paid by Father, less $302.47 per month on account of a
shared custody schedule, plus $335.63 for APL.
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2. Mother, through her counsel, will send to Support Hearing
Officer . . . and father a true and correct copy of her filed
2018 Federal Income Tax Return, which will show mother’s
refund. Support Hearing Officer . . . will, upon receipt of
same, recalculate mother’s increased net monthly income
and recalculate the support order and send it to the parties.
3. Support Hearing Officer Coacher will amend the order to
reflect her reasoning with respect to her denial to give father
an adjustment on the mortgage payments: “Specify, in
writing, the reasons for, and findings of fact justifying the
denial.”
Order, Mar. 4, 2019. Father filed an appeal, which this Court dismissed as
interlocutory.
In April 2019, the Support Officer entered an order revising the
recommended order, as the court had directed. This time, both Father and
Mother filed exceptions. After a hearing, the court denied Father’s exception
to denial of the mortgage adjustment and granted the parties’ exceptions
relating to the calculation of Mother’s income. Memorandum and Order, Feb.
14, 2020. The court again remanded to the Support Officer, this time for a
more specific explanation of the calculation of Mother’s income, as the court
and the parties were unable to determine how the Support Officer calculated
the net income.3 Id. at ¶¶ 9-13. The court further found that the Support
Officer’s rationale for denying the mortgage adjustment was “sound and . . .
an appropriate exercise of . . . discretion.” Id. at 14-16. The court also found
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3 The parties also agreed that the alimony pendente lite should be terminated,
as they settled the equitable distribution matter in October 2019.
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that the Master erred in calculating the APL, as it should have applied a newly
amended rule. Id. at ¶¶ 20-22. The court entered the following order:
1. Father’s and Mother’s Exceptions, as to Mother’s income,
are GRANTED.[4]
2. Father’s Exception, as to the mortgage payment
adjustment, is DENIED.
3. Father’s and Mother’s Exceptions, as to the need to
implement the new APL/Child Support formula retroactive
to the filing date of August 9, 2018, are GRANTED.
5. The APL component of the Order, in accordance with the
parties Equitable Distribution Agreement, terminates
effective October 30, 2019 (except for arrears).
6. The matter is remanded to the Support Hearing Officer to
administratively recalculate the Order consistent with the
findings that accompany this Order.
7. In the interim, the Support Officer’s Order of April 30,
2019, shall remain in full force and effect.
Order, Feb. 14, 2020. The court then amended this order denying the
exceptions requesting retroactive application of the new APL/Child Support
order, which was contained in the third paragraph of the order. Order, filed
Feb. 25, 2019. The court noted that “Rule 1910.16-4(a)(2) applies.” Id.
In March 2020, the Support Officer entered an order stating that
Mother’s income was calculated based on her 2018 tax return, which she filed
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4 In Mother’s exceptions, she argued that, although the Support Officer
properly used the 2018 tax return, she did not properly calculate Mother’s
income. Father argued Mother’s income should be calculated “by taking the
sum of her monthly net income from employment . . . which includes wages
and tips, and the portion of her federal tax refund that includes only the
refundable credits . . . when claiming one child.” Plaintiff’s r. filed. Sept. 12,
2019, at 2. He also references the voluntary reduction and earning capacity
law in income law. Id. at 4.
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as head of household, and she had a net monthly income of $1,891.08.
Father’s income was unchanged, at $3,997.00 per month. The order
calculated the support obligation as $944.43 per month, consisting of
$1,025.67 per month for two children, less $150.38 for medical insurance paid
by Father, less $300.09 per month due to the shared custody schedule, and
plus $369.23 APL through October 2019.
Father filed exceptions. After argument, the court denied the exceptions
in July 2020. The court further directed Father to pay Mother $962.50 in
counsel fees, reasoning that the third set of exceptions were repetitious:
8. The Exceptions that Father filed this time are directed
totally at his dissatisfaction over his disagreement with the
Court over the use of Mother’s tax return for the purpose of
determining her net monthly income (this issue was
previously addressed in Father’s first and second set of
Exceptions).
9. In point of fact, at one point during the current Exceptions
argument, Father (who is an accountant by profession),
appeared to concede that the Officer’s calculation itself,
from the 2018 return, was “mathematically accurate”.
10. Accordingly, this third set of Exceptions are therefore
needlessly repetitious and represent yet a third time Father
has argued the same point relating to the calculation of
Mother’s income; albeit to two different Judges (Judge
Bertin on the 2019 Exceptions and the undersigned on the
February 2020 Exceptions and the current Exceptions).
11. On Father’s exception that the Support Hearing Officer
failed to provide him with the mortgage adjustment, this
point was not directed as part of the undersigned’s remand
as it was previously raised by Father in his prior Exceptions
(and specifically “DENIED” in Section 2. of the undersigned’s
February 25, 2020 Order).
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12. Again, this exception item is needlessly repetitious and
represented a second attempt to re-litigate a point that was
previously addressed, and ultimately determined to finality,
by the Court.
13. On the overall, these third set of Exceptions were clearly
not necessary or appropriate.
14. Father’s actions in filing them caused Mother to expend
unnecessary legal fees to defend against his Exceptions and
to which she is entitled to reimbursement.
Order, July 24, 2021, at 2-3. The court ordered Father to pay $962.50 toward
the payment of Mother’s counsel fees—the fees incurred in the support matter
since the filing of Father’s final exceptions. Id. at 3-4. Father filed a notice of
appeal.
Father raises the following issues:
1) Did the Trial Court err as a matter of law and abuse its
discretion when it calculated Mother’s monthly net income
(MNI) where the evidence presented established that
Mother had voluntarily reduced her income?
2) Did the Trial Court err as a matter of law and abuse its
discretion by applying the wrong formula when determining
which formula to apply for the calculation of child support
and Alimony Pendente Lite (APL)?
3) Did the Trial Court err as a matter of law and abuse its
discretion when it Ordered [Father] to pay Mother's legal
fees?
4) Did the Trial Court err as a matter of law and abuse its
discretion in denying [Father] a mortgage adjustment?
Father’s Br. at 4.
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Father first claims that Mother’s income should be based on her income
earned at a prior hair salon, as she made more money in tips at the prior job.5
He argues that she did not present evidence that the change in employment
was involuntary or that she attempted to mitigate her reduction in earnings.
He therefore maintains she did not meet her burden under Pennsylvania Rule
of Civil Procedure 1910.16-2(d) and there should be no change to her monthly
net income for purposes of calculating support or the support obligation. He
claims the trial court did not provide any authority for its direction to use
Mother’s income from the 2018 tax return rather than her earning capacity as
determined by the prior support order. Father further notes that during 2018,
Mother received disability pay for a portion of time. Such pay would be used
to calculate support but would not be taxable income for federal tax purposes
and therefore was not present on her 2018 tax return. He maintains that
Mother’s monthly pay can be determined from her paystubs and that her tax
refund should be included as income.
We review a court’s determinations regarding support for an abuse of
discretion. Woskob v. Woskob, 843 A.2d 1247, 1251 (Pa.Super. 2004).
“Although a person’s actual earnings usually reflect his earning capacity,
where there is a divergence, the obligation is determined more by earning
capacity than actual earnings.” Id. “Earning capacity is defined as the amount
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5 Mother claims he waived this claim for failing to timely raise it. However, it
appears Father has repeatedly raised it, it was addressed in an April 30
Memorandum and Order, from which Father filed an interlocutory appeal, and
he continued to raise it after.
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that a person realistically could earn under the circumstances, considering his
age, health, mental and physical condition, training, and earnings history.”
Id. Where a “party voluntarily assumes a lower paying job, quits a job, leaves
employment, changes occupations or changes employment status to pursue
an education, or is fired for cause, there generally will be no effect on the
support obligation.” Rule 1910.16-2(d)(1); see also Woskob, 843 A.2d at
1254 (“Where a party assumes a lower paying job or willfully fails to obtain
appropriate employment, the support obligation is determined by his assessed
earning capacity”).
The trial court concluded:
Father argues that because Mother stipulated in an agreed
order on October 27, 2017 that her net income was
$2,470.00[6] per month that she is bound by that and that
that is her earning capacity for the support hearing held on
November 1, 2018 and Support Hearing Officer[‘s] . . .
finding of a net income for [M]other of $2,025.00 per month
is in error. The court disagrees.
This is not an earnings “capacity” case. This is an earnings
case. Mother was a hairdresser on October 26, 2017 and is
still a hairdresser and was a hairdresser on November 1,
2018. Mother is not underemployed. Mother is not obtaining
employment in a different occupation to purposely lower her
income in order to receive higher support.
Credibility of witnesses and fact-finding is for the Support
Hearing Officer, not the reviewing court . . . . The reason for
this is clear. The Support Hearing Officer sees and hears the
witnesses and watches them testify, not the reviewing
court. Mother gave the Support Hearing Officer her paystubs
and testified they represented all the cash tips she received.
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6 On appeal, Father uses a different calculation and claims Mother’s net
income is $3,031.00. Father’s Br. at 23.
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The Support Hearing Officer believed [M]other. That is the
Support Hearing [O]fficer’s province to do. Thus the Support
Hearing Officer found [M]other net income to be $2,205.00
per month, not $2,470.00 per month at the present time.
The Support Hearing Officer is basing her findings on
[M]other’s “actual income,” as she should. Mother changed
salons. Further, she has different time commitments
available for work due to having to attend therapy. There
was no error here.
Memorandum and Order, filed Mar. 4, 2019, at 1-2.
The trial court did not abuse its discretion. Although Mother switched
job locations, she remained a hairdresser, and there was no evidence she
reduced her income to reduce child support obligations. Further, as to Father’s
argument that the tax refund should be considered income to Mother, the trial
court agreed and ordered it to be included. Id. at 2. Father’s first claim lacks
merit.7
In his second argument, Father claims that the new formula for
calculating APL, contained in Rule 1910.16-4(a)(1) and effective January 1,
2019, should apply. Father claims that Mother agreed with this, and the court’s
initial order required the use of the new formula. However, he claims the court
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7 The certified record does not contain the transcripts related to the support
action. “[I]f a document is not in the certified record, the Superior Court may
not consider it.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006)
(en banc). “[T]he responsibility rests upon the appellant to ensure that the
record certified on appeal is complete in the sense that it contains all of the
materials necessary for the reviewing court to perform its duty.” Id. To the
extent Husband’s argument relies on the transcript, he has waived the
argument. However, insofar as we can resolve the claim without the
transcript, we will review it. See Commonwealth v. Houck, 102 A.3d 443,
456 (Pa.Super. 2014) (noting that an appellant’s failure to ensure the inclusion
necessary transcript in the certified record renders any claim that cannot be
resolved in the absence of that transcript waived).
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reversed its position in an amended order, stating the old formula applied
pursuant to Rule 1910.16-4(a)(2). He claims the amended order was error
and an abuse of discretion.
The trial court found the amendments did not apply to the support order
in this case, noting the original order was entered before January 1, 2019 and
the parties did not agree to apply the new rules to the modification:
Effective January 1, 2019, the long-standing formula set
forth in the Rules of Court, to be utilized by the trier-of-fact
for the calculation of child support and APL, was changed by
our Supreme Court as a result of the Tax Cuts and Jobs Act
of 2017.
For cases filed after January 1, 2019, the calculation to be
utilized was reversed such that the obligor’s APL obligation
is to be calculated first and then the adjusted incomes of
both parties are factored into to the calculation of each
parties[’] child support obligations pursuant to Rule
1910.16-4 (a) (1) (Part B).
41 As part of the October 30, 2019 Agreed Order, the
parties settled all outstanding equitable distribution
claims and APL terminated.
For cases filed prior to January 1, 2019 (such as in the within
matter), the prior formula in effect whereby child support is
calculated first and then APL, set forth in Rule 1910.16.-4
(a) (2) (Parts I through IV), still applies.
...
In the within matter, there was already an Order in place as
of January 1, 2019. There was no agreement by the parties
to proceed with two calculations, under the prior formula
and the new formula. Thus, the formula set forth in Rule
1910.16-4 (a) (1) (Parts A through E) clearly applies.
Following the February 6, 2020 argument on Father’s
second set of Exceptions, the undersigned mistakenly
directed the Officer to use the new formula on the remand
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directed in the Order entered on February 13, 2020. Upon
discovering an error in the undersigned’s interpretation of
the new Rule, which had only been in effective for
approximately five weeks, the undersigned proceeded to
promptly enter an Amended Order on February 25, 2020 to
correct the error.
Trial Court Opinion, filed Feb. 19, 2021, at 12-14 (some footnotes omitted).
Pennsylvania Rule of Civil Procedure 1910.16-4 governs the calculation
of support obligations, and provides, in part, that:
(a) The trier-of-fact shall use either the subdivision (1) or
subdivision (2) formula to calculate the obligor’s share of
basic child support, either from the schedule in Pa.R.C.P.
No. 1910.16-3 or the formula in Pa.R.C.P. No. 1910.16-
3.1(a), as well as spousal support and alimony pendente lite
obligations. . . .
(1) The formula in Parts A through E is for an order
entered on or after January 1, 2019, or for a
modification of an order entered before January 1,
2019 that includes spousal support or alimony
pendente lite in which the amendments to the Internal
Revenue Code made by Section 11051 of the Tax Cuts
and Jobs Act of 2017 (Pub. L. No. 115-97) expressly
apply.
...
(2) The formula in Parts I through IV is for a
modification of an order entered before January 1,
2019 that includes spousal support or alimony
pendente lite.
Pa.R.C.P. 1910.16-4(a)(1).8
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8 The notes to this Rule provide:
Note: Section 11051 of the Tax Cuts and Jobs Act of 2017
(Pub. L. No. 115-97) amended the Internal Revenue Code
(Footnote Continued Next Page)
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Section 11051 of the Federal Tax Cuts and Jobs Act of 2017 (Pub. L. No.
115-97) provides that its provisions “shall apply to--(1) any divorce or
separation instrument (as defined in section 71(b)(2) of the Internal Revenue
Code of 1986 as in effect before the date of the enactment of this Act)
executed after December 31, 2018, and (2) any divorce or separation
instrument (as so defined) executed on or before such date and modified after
such date if the modification expressly provides that the amendments made
by this section apply to such modification.” Pub.L.No. 115-97.
Here, the first support order was entered before December 31, 2018
and the modification order did not expressly provide that the amendments
contained in Section 11051 of the Tax Cuts and Jobs Act of 2017 would apply
to the order. The trial court therefore did not err in concluding the
amendments did not apply to the support order.
In his third argument, Father challenges the award of counsel fees
against him. He notes the court found the award of fees proper because Father
raised issues in his Exceptions that had already been “addressed and
determined by the Officer, or either Judge Bertin or the undersigned.” Father’s
Br. at 28 (quoting Order, filed July 24, 2020). Father argues that because
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by repealing the alimony deduction -- the amount of spousal
support, alimony pendente lite, and alimony paid or
received -- from the payor’s gross income and the alimony
inclusion into the payee's gross income.
Pa.R.C.P. 1910.16-4(a), Notes.
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Mother started the litigation process, she should not be entitled to counsel
fees. Further, “[t]he filing of Exceptions most certainly is within the right of a
support litigant seeking to obtain a lawful and just Order” and the court was
“essentially seeking to punish Father for exercising his right to challenge
decision that were made which is his right to do.” Id. at 29. He argues that
any repetitions in the arguments raised “[were] due to the fact that Order
were continuously remanded and new Orders entered.” Id. He was compelled
to assert exceptions to each order to ensure he preserved the issues. Id.The award of counsel fees in a support action is governed by statute,
which provides: “If an obligee prevails in a proceeding . . . to obtain a support
order, the court may assess against the obligor . . . reasonable attorney fees
. . . incurred by the obligee . . . .” 23 Pa.C.S.A. § 4351(a). “[E]ven when the
obligee prevails, counsel fees are not automatic, but instead are contingent
upon in the discretion of the court.” Bowser v. Blom, 807 A.2d 830, 835 (Pa.
2002). Courts consider “the totality of relevant circumstances that informs the
determination of whether to award counsel fees.” Id. at 836.
Here, we cannot say the court abused its discretion when it required
Father to pay Mother’s counsel fees associated with the final exceptions. The
court repeatedly granted certain exceptions, requiring the Support Officer to
enter amended orders. However, Father continued to raise exceptions that
previously had been denied.
In his last argument, Father claims the court erred in finding he was not
entitled to a mortgage adjustment. Father notes that, although the house was
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pre-marital property titled solely in his name, both Mother and Father are on
the mortgage. Further he claims that she benefitted from the equity in the
marital residence and that the balance on the mortgage is higher than the
balance owed on the date of the marriage. He argues he was paying child
support and APL while also paying the expenses to maintain the marital
residence and should receive a mortgage adjustment to help with the
payments.
The trial court concluded it was not an abuse of discretion to deny a
downward departure, noting the house was not marital property:
Rule 1910.16-6(e)(2) allows for the potential of a downward
reduction in the support amount if the obligor is occupying
the marital residence and the mortgage payment exceeds
25% of his monthly net income (less child support, spousal
support, and APL).
Notably, a downward reduction and the specific amount of
a reduction, is completely within the discretion of the trier-
of-fact based on the circumstances of the case.
There is no dispute in this case regarding whether the
mortgage payment on the former marital home exceeded
the threshold in the Rule. Rather, Father argues that there
was an abuse of discretion by not providing him with the
adjustment.
...
A decision by a finder of fact to not issue a deviation from
the child support guidelines is within the discretion of the
fact-finder; absent an abuse of discretion, the support order
will be upheld. . . .
In the April 30, 2019 Order, the Support Hearing Officer
clearly set forth her reasoning for denying Father a
mortgage adjustment stating as follows:
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Father’s request for a reverse mortgage deviation is denied.
The real estate which is secured by the mortgage being paid
by Father is pre-marital property titled only in the name of
Father. As such, the only claim Mother will have in Equitable
Distribution would be a percentage of its increase in value
during the time of the marriage. To require Mother to
contribute to the expenses of this mortgage after separation
is inappropriate because Father is not preserving a marital
asset but an asset that solely belongs to him.
In making this determination in the Order, appropriate
emphasis was placed upon the fact that the property in
question (where Father resides), was not marital property
as Rule 1910.16-6(e) contemplates, but rather was property
owned by Father prior to the marriage. Accordingly, Wife
had no economic claim to the home after separation, and
except for a claim for a percentage of the increase in value
that occurred during the marriage, she would not see any
financial benefit from the property to which she would be
contributing maintenance toward. In short, it would be
unreasonable and inappropriate for Mother to contribute, via
a mortgage adjustment in Father’s favor, to the upkeep and
expenses of Father’s property (which he is residing in) for
his benefit alone.
Ironically, by the time the matter was argued before the
undersigned in February 2020, on the second set of
Exceptions, it was acknowledged by both parties’ counsel
that, in fact, Mother in actuality did not benefit from any
increase in value during the by-then completed equitable
distribution proceedings. In essence, the long delay in the
support litigation resulted in an affirmation of the very
rationale set forth by the Support Hearing Officer (thereby
reinforcing that it was “sound”).
Trial Ct. Op., filed Feb. 19, 2021, at 17-19 (footnotes and citations omitted).
The trial court did not abuse its discretion. Here, the home is non-marital
property, such that Wife was only entitled to any increase in value during the
marriage for purposes of equitable distribution. Thus, a downward adjustment
was not warranted.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2021
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