Hyde v. Hyde

WIEAND, Judge:

The principal issue in this appeal is the consideration to be given to alimony payments in determining the amount of child support payments to be made by a divorced mother and father, both of whom have independent incomes.

Susan Hyde and Lloyd Hyde were married on August 13, 1970 and parented three children: Rebecca, age 19; Daniel, age 17; and Joshua, age 15.¹ Prior to the entry of a decree in divorce on February 1, 1988, the parties entered a separation and property settlement agreement. Pursuant to the terms thereof, custody of the three children was awarded to Susan. Lloyd, meanwhile, obligated himself to pay child support in the amount of five hundred ($500.00) dollars per month and alimony in the amount of one thousand eight hundred twenty ($1,820.00) dollars per month for a period of seventy-two (72) months. Subsequent to the divorce, the two younger children moved in with their father. Rebecca continues to live with her mother while not in residence at Westminster College, where she matriculates.

In November, 1989, Susan Hyde filed a petition seeking to hold her former husband in contempt of court for failing to comply with the terms of the property settlement agreement, which had been incorporated into the divorce decree. She also filed a petition in which she made an additional claim against her former husband for the educational costs being incurred by Rebecca.² On January 2, 1990, an order was entered directing Lloyd to pay four hundred ($400.00) dollars per month on account of Rebecca’s college education. In September, 1990, Lloyd Hyde filed a petition for the support of the two children who were now living with him. He also asked the court to vacate the order for Rebecca’s educational support. After a hearing in October, 1990, the court found Lloyd Hyde in contempt for failing to make alimony payments in full, determined the amount of alimony in arrears, vacated the order for the support of the two children who were now living with their father, gave credit for child support adjustments, and directed that Lloyd pay Susan the sum of $19,-664.06. The court also refused to vacate the order of $400.00 per month toward the cost of a college education for Rebecca and ordered Susan to pay $450.00 per month for the support of the two younger children. Lloyd appealed. He contends that in several respects the trial court abused its discretion.

Lloyd is the owner of a franchise known as “Servpro” which cleans and restores fire damaged buildings and contents. The court found his earnings to be $3500 per month. From this amount, he is required to pay alimony in the amount of $1,820.00 per month and educational support for Rebecca in the amount of four hundred ($400.00) dollars per month.

Susan is a working psychologist and is entered in the Ph.D. program at Indiana University of Pennsylvania. She has income, exclusive of alimony, in the amount of two thousand ($2,000.00) dollars per month. When this is added to the alimony received by Susan, it is clear that she has a cash flow of at least three thousand, eight hundred twenty ($3,820.00) dollars per month.³ From this amount she contributes the sum of four hundred ($400.00) dollars per month to Rebecca’s college education.⁴

It is a simple matter of mathematics to determine that Lloyd, after paying alimony and educational support as ordered by the court,⁵ has available monthly the sum of twelve hundred eighty ($1,280.00) dollars for the support of himself and the two children who are living with him. Susan, on the other hand, has available monthly for the support of herself and the two children, after paying four hundred dollars for Rebecca’s education, the sum of three thousand, four hundred twenty ($3,420.00) dollars.

In determining Susan’s obligation to contribute to the support of her two children, the trial court excluded the monthly alimony which she received and found that her only income was two thousand ($2,000.00) dollars per month. In determining whether Lloyd had a continuing obligation to contribute to Rebecca’s college education, however, the trial court considered his monthly income to be thirty-five hundred ($3,500.00) dollars. It is the failure either to reduce Lloyd’s income by the amount of alimony which he pays or to increase Susan’s income by the amount of alimony which she receives which has created the inequitable disparity between the parental obligations of Lloyd and Susan. Some of this disparity has also been brought about by the terms of the parties’ agreement, and if Lloyd were the only victim of the disparate income, we would not be inclined to rescue him from the results of a bad bargain. In fact, however, the real victims are the two children who are presently living with him. Their right to be supported adequately cannot be bargained away by their parents. See: Brown v. Hall, 495 Pa. 635, 643 n. 11, 435 A.2d 859, 863 n. 11 (1981); Travitzky v. Travitzky, 369 Pa.Super. 65, 79 n. 6, 534 A.2d 1081, 1088 n. 6 (1987); Oman v. Oman, 333 Pa.Super. 356, 361, 482 A.2d 606, 609 (1984).

In Steinmetz v. Steinmetz, 381 Pa.Super. 440, 554 A.2d 83 (1989), a panel of the Superior Court considered a similar issue. It‘determined, under the circumstances of that case, that alimony payments should not be considered income to a wife-mother but that the father’s available income should be reduced by such payments of alimony. The court was influenced by the fact that the wife-mother was dependent upon the alimony which she received to support herself. It concluded, therefore, that income derived by her from alimony payments should not be a source of support for her children. The Court’s ruling, however appropriate to the facts of that case, as the Court realized, cannot be applied automatically to all cases. Thus, the Court said specifically that alimony payments are not “automatically” to be included as income to the wife.

The trial court, in the instant case, failed to follow the teaching of Steinmetz, because it determined that alimony payments should be excluded as income to Susan but should not be excluded from that income to Lloyd which was available for child support. This was error. In fact, of Lloyd’s income of $3,500.00 per month, the sum of $1,820.00 per month is immediately earmarked as alimony to Susan. Thus, Lloyd has available for the support of himself and his children only $1,680.00 per month. This is approximately four hundred ($400.00) dollars per week and does not bespeak an ability to contribute to Rebecca’s college education without undue hardship to Lloyd and the two children living with him. See: Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989); Chesonis v. Chesonis, 372 Pa.Super. 113, 538 A.2d 1376 (1988).

In fact, however, the holding in Steinmetz v. Steinmetz, supra, has been superseded by the Rules of Civil Procedure adopting the Support Guidelines. The monthly net income of mother and father, for purposes of applying the guidelines, is to be determined as set forth in Pa.R.C.P. 1910.16—5(b). It is there provided as follows:

(b) Monthly Net Income. The amount of support to be awarded is based in large part upon the parties’ monthly net income. Monthly net income is determined by subtracting only the following items from monthly gross income:

(1) federal, state, and local income taxes;

(2) F.I.C.A. payments and non-voluntary retirement payments;

(3) union dues;

(4) health insurance premiums for the benefit of the other party or the children.

Monthly gross income is ordinarily based upon at least a six-month average of all of a party’s income. The term “income” is defined by the support law, 23 Pa.C.S. § 4302,⁶ and includes income from any source. The statute lists many types of income including:

(1) wages, salaries, fees and commissions;

(2) income from business or dealings in property;

(3) interest, rents, royalties, and dividends;

(4) pensions and all forms of retirement;

(5) income from an interest in an estate or trust; and

(6) social security benefits, temporary and permanent disability benefits, workmen’s compensation and unemployment compensation.

From this it is quite clear that alimony payments are not to be subtracted from gross income to determine net income available for child support. Alimony is not one of the items which are deductible from gross income to determine net income. On the other hand, gross income is defined generally as “income from any source” and is broad enough to include alimony payments. Thus, since alimony payments must be accounted for, they are counted as gross income to the receiving spouse.⁷

In the instant case, a fair and equitable result can best be achieved by including the alimony payments as monthly gross income to Susan. In this manner, her ability to contribute to the support of her children can most accurately be determined without depriving her of the benefit of the order requiring Lloyd to pay alimony. By requiring her to contribute to the support of the children who are now residing with Lloyd on the basis of the income which she receives from all sources, she will be able to benefit her children fairly and in keeping with the funds available to her. When she makes these contributions in accordance with the guideline formula, Lloyd should also be able to continue his payment of one-half of Rebecca’s monthly expenses at college. In this manner, both parents will continue fully to be a sustaining force in the lives of all of their children. The alimony payments, then, will not be placed beyond the reach of the children’s needs but will be available, as circumstances permit, to insure that the children are properly supported.

Appellant also contends that the trial court erred when it required him to pay interest at the rate of 7]/¿ percent per month on unpaid alimony and improperly apportioned his payments between educational expenses for his daughter and alimony for his former wife. However, the terms of the agreement which establish the rate of interest on unpaid alimony are clear,⁸ and the record does not demonstrate that they are the result of mutual mistake. Moreover, the record does not disclose that the apportionment of payments by the Collection Department was improper or in violation of specific instructions by appellant. As such, there is no basis for disturbing the hearing court’s computation of interest chargeable to appellant on alimony payments not made when due.

Reversed and remanded for proceedings consistent with the foregoing opinion. Jurisdiction is not retained.

JOHNSON, J., files a dissenting opinion.

1 . These were the ages given at the time of the hearing in October, 1990.

2 . The agreement contains no provision for the payment of college expenses for the children by either parent.

3 . It is undisputed that Susan receives payments of six hundred ($600.00) dollars per month from a note assigned to her as part of the parties' property settlement agreement. Husband argues that this is in addition to wife’s income of two thousand ($2,000.00) dollars per month. Although this was not the subject of a finding by the hearing court, there is some, albeit not conclusive, support in the record for husband’s contention. If this is correct, then wife has an actual cash flow of four thousand, four hundred twenty ($4,420.00) dollars per month.

4 . The parties stipulated that Rebecca’s expenses were in the total amount of eight hundred ($800.00). dollars per month.

5 . Lloyd is also required to pay medical expenses for the children and interest at the rate of l'k% per month on overdue payments of alimony.

6 . The provisions of 23 Pa.C.S. § 4302, in pertinent part, are as follows:

“Income.” Includes compensation for services, including, but not limited to, wages, salaries, fees, compensation in kind, commissions and similar items; income derived from business; gains derived from dealings in property; interest; rents; royalties; dividends; annuities; income from life insurance and endowment contracts; all forms of retirement; pensions; income from discharge of indebtedness; distributive share of partnership gross income; income in respect of a decedent; income from an interest in an estate or trust; military retirement benefits; railroad employment retirement benefits; social security benefits; temporary and permanent disability benefits; workmen’s compensation and unemployment compensation.

7 . We observe that alimony payments, if paid pursuant to court order, are also deemed income to the receiving spouse for income tax purposes.

8 . Appellant has not argued that the rate of interest established by the agreement is usurious, and with respect thereto we express no opinion.