Kimble, M. v. Kimble, G.

J-S70009-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARTHA STEWART KIMBLE, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY BO KIMBLE,
Appellant No. 3520 EDA 2014
Appeal from the Order Entered October 24, 2014
in the Court of Common Pleas of Montgomery County
Civil Division at No.: 2010-26039
BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 28, 2015
Appellant, Gregory Bo Kimble, (Father) appeals from the trial court’s
October 24, 20141 order granting the petition of Appellee, Martha Stewart
Kimble, (Mother) for contempt and specific performance of the marital
settlement agreement, dismissing Father’s petition to place money into
escrow as moot, and ordering that Father pay child support to Mother as
specified. We affirm.
We take the facts and procedural history of this case from the trial
court’s October 24, 2014 opinion and order, the notes and testimony of the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The trial court’s order was dated October 23, 2014, but was filed on
October 24, 2014. We have amended the caption accordingly.
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June 9, 2014 and October 15, 2014 hearing, and our independent review of
the record.
Father and Mother are the parents of Child, (DOB: 1/03/07). Mother
is a full-time social worker and Father is a retired NBA player with a college
degree in communications. Father and Mother share legal and physical
custody of Child. Father has two other children, an emancipated daughter
who lives in Virginia, and a son with his current paramour. Mother has
another child with her new husband.
Father and Mother were married on August 29, 1998. On August 16,
2002, Father and Mother executed a post-nuptial agreement, which
provided, inter alia, that upon divorce, after Mother vacated the marital
residence, Father agreed to pay Mother $50,000.00. (See Postnuptial
Agreement, § 5(F)(1)). On May 21, 2012 the court entered a divorce decree
which incorporated the post-nuptial agreement. (See Divorce Decree,
5/21/12). Both parties agree that Father has failed to pay Mother any of the
$50,000.00 provided for in the post-nuptial agreement.
Mother filed her first request for child support on September 2, 2010.
In a recommendation approved by the court per curiam on February 24,
2011, the special divorce Master determined that Father had the ability to
earn an income of $100,000.00 and calculated his child support to be
$1,314.00 monthly. On August 8, 2012, the Master issued a
recommendation, approved per curiam by the court on August 13, 2012,
which determined that Father had a net earning capacity of $50,000.00 and
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calculated his child support obligation to be $750.00 monthly. Mother filed
timely exceptions to this Order on August 17, 2012.
In November 2013, Father obtained a monetary settlement in a
workers compensation case against the NBA. On November 15, 2013,
Father filed a petition to place the proceeds of this settlement in escrow to
be put towards child support. On November 19, 2013, the court scheduled
Father’s petition to be heard together with Mother’s exceptions to the August
13, 2012 child support order. On November 25, 2013, Montgomery County
Domestic Relations received a check containing funds from the settlement
for $20,397.24, which it placed in escrow. On January 10, 2014, the court
ordered these funds be released to Domestic Relations to be applied to this
case. However, on January 23, 2014 the court vacated that order because
of the November 19, 2013 order.
On March 4, 2014, the Master issued a recommendation that Father
has an earning capacity of at least $3,000.00 per month, Mother has a
salary of $2,800.00 per month, the parties have shared custody, and
support is not warranted because the parties’ incomes are essential equal.
The trial court approved the recommendation per curiam on March 5, 2014.
Both Father and Mother filed exceptions.
On June 9, 2014, the trial court held a hearing on the outstanding
exceptions concerning child support and Mother’s petition for contempt
and/or specific performance of the post-nuptial agreement. During the
hearing, Father testified that an NBA pension that he was entitled to had
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gone to pay for a child support obligation in Virginia.2 (See N.T. Hearing,
6/09/14, at 133-36). Father did not testify nor did counsel present any
evidence that any source of income, other than the pension, was going
toward his Virginia child support obligations.
On the adjourned date of the hearing October 15, 2014, the trial court
explained to Father that
. . . I want to say very clearly here in court because I don’t want
there to be any surprises.
[Father], I don’t find you credible. You were evasive in
your testimony. You were constantly contradicted, both when
asked on cross-examination, even questions by your own
counsel. I find it impossible to believe that you can’t come up
with—have no concept of where $117,000 went after you sold
your home and that in the last four months you couldn’t find any
accounting of it. You didn’t make the effort.
. . . Since 2008 you’ve applied for thirty-eight jobs, thirty-
eight jobs total. That doesn’t support a family.
I understand why you want the life you used to have. I
understand why you want to be the superstar N.B.A.
player/movie producer. We all would love to do that, but you
don’t have those opportunities anymore and you’ve got to figure
out how you support your family. And the fact that you got a
job a few weeks ago doesn’t do it.
With your recognition and the way you can articulate
clearly, you’re an attractive man, you could go out and get a
variety of jobs but you didn’t think it was appropriate to apply
for those jobs. You applied for your dream jobs and one other
until two weeks ago.
____________________________________________
2
Father testified that his daughter in Virginia was nineteen years old at the
time of the hearing and that he currently owes $7,000 in arrears in support
for her. (See N.T. Hearing, 10/15/14, at 96).
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. . . You’re not able to support your family on what you’re
trying to do but you have the luxury of other people trying to
step up and cover all your expenses so you can live this lifestyle.
You need to be a man and figure out how to take care of your
children, and the one before me is [Child].
Your testimony has not been credible about your efforts
and I believe you have a much more substantial earning capacity
than you pretend that you have here and that will be reflected in
my decision, . . . I do not find you credible. I do not find that
you have made any real effort at getting a job since 2008 and
it’s about time you look for a real job, not a $3.50 per package
job but a real job where you have to spend your time, not just
I’m going to make calls during the day and hope it works out
and fly around country and have people put me up. That’s your
obligation as a father and you need to do it.
(N.T. Hearing, 10/15/14, at 108-10).
On October 24, 2014, the trial court entered an opinion and order
ruling on the outstanding exceptions and petition for contempt. The trial
court found that
. . . Over the past eight (8) years Father has been unwilling to
obtain gainful employment. Instead he has been supported in a
variety of ways by different women. This support has enabled
him to live a fortunate lifestyle in a luxury home, with access to
luxury cars and travel without having to make any financial
contributions to this lifestyle. Throughout the past eight (8)
years Father has made almost no effort to obtain a reasonable
source of income, but instead has unrealistically applied for
employment in the professional or college sports arena for which
he has received no favorable responses.
(Trial Court Opinion, 10/24/14, at 2).
The court further found that
Father has demonstrated a consistent pattern of applying
for “dream jobs” but never applying for jobs he could easily
attain and which would help provide for Mother and [C]hild.
Father is able to pursue this lifestyle by living off of “loans”
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provided to him by friends, acquaintances and family members.
Accordingly, this [c]ourt holds that Father has willfully failed to
obtain or maintain appropriate employment pursuant to
Pa.R.C.P. 1910.[1]6-2(d)(4) and imputes an appropriate earning
capacity for Father in the support order below.
(Id. at 6).
. . . Father is a former NBA basketball player with a college
degree in communications/broadcasting. Father also enjoys
minor celebrity status. He is a physically capable, educated,
articulate man. Father has been periodically providing private
basketball lessons charging fifty dollars ($50.00) per hour. The
undersigned found it reasonable that Father would be able to
provide private basketball lessons for at least twenty (20) hours
a week or attain a job where he would make $50,000.00 per
year (net monthly income of $3,191.00).
(Order, 10/24/14, at 8).
The court’s October 24, 2014 order held Father in contempt of the
marital settlement agreement and directed that the $20,397.24 being held
in escrow by Domestic Relations was to be released to Mother and applied
toward the $50,000.00 that Father agreed to pay her. (See id. at 7).
Finally, the court also ordered that Father pay child support to Mother in the
amount of $840.30 per month from June 8, 2012 to August 9, 2013;
$843.30 for the period from August 9, 2013 to October 29, 2013; and
$239.33 per month for the period from October 29, 2013 moving forward.
(See id. at 8-9). In addition to the amounts listed above, the court ordered
that Father pay $100.00 per month on arrears with each periodic payment.
(See id. at 9).
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On November 24, 2014, Father filed a timely notice of appeal. By
order filed November 26, 2014, the court directed Father to file a concise
statement of errors complained of on appeal and to serve a copy on the
court. On December 1, 2014, Father’s counsel withdrew his appearance on
behalf of Father and Father entered his appearance pro se. After the trial
court granted him two extensions of time to do so, Father pro se filed his
Rule 1925(b) statement on December 31, 2014; however, he did not serve a
copy of the statement of errors on the court. See Pa.R.A.P. 1925(b). On
January 23, 2015, the trial court issued its opinion incorporating its October
24, 2014 opinion and order. See Pa.R.A.P. 1925(a).
Father raises the following questions for our review pro se:
1. Whether the [t]rial [c]ourt erred by ordering money escrowed
pursuant to the Montgomery County Domestic Relations order
No. 10-26039 dated November 19, 2013, for the purpose of child
support, to be distributed and paid to [Mother] towards amounts
owed pursuant to their [m]arital [s]ettlement [a]greement[?]
2. Whether the [t]rial [c]ourt erred by concluding that [Father]
has an earning capacity of $50,000.00 per year (net monthly
income of $3,191.00) without basis for the conclusion[?] . . .
3. Whether the [t]rial [c]ourt erred by rendering a support
ruling without consideration (as stipulated in footnote 7 of the
October 2[4], 2014 Order) of an active pre-existing support
ruling from the Commonwealth of Virginia, for the benefit of
[Father’s] eldest child, . . . , in violation of Rule 1910.16-7 of the
Pennsylvania Rules of Civil Procedure[?]
(Father’s Brief, at 1) (some argument omitted).
Preliminarily, we agree with the trial court that Father’s violation of
Rule 1925(b)’s requirements to file and serve his 1925(b) statement
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constitutes a waiver of all of his claims. See Commonwealth v. Hill, 16
A.3d 484, 494 (Pa. 2011) (“Rule 1925(b) sets out a simple bright-line rule,
which obligates an appellant to file and serve a Rule 1925(b) statement,
when so ordered; . . . the courts lack the authority to countenance
deviations from the Rule’s terms; the Rule’s provisions are not subject to ad
hoc exceptions or selective enforcement[.]”). Moreover, even if not waived,
Father’s issues lack merit.
In his first issue, Father claims that the trial court erred by ordering
that the $20,397.24 being held in escrow by Domestic Relations be applied
toward the $50,000.00 that Father owed Mother pursuant to their marital
settlement agreement rather than applying that money for the purpose of
child support. (See Father’s Brief, at 7-8).
When interpreting a marital settlement agreement, the
trial court is the sole determiner of facts and absent an abuse of
discretion, we will not usurp the trial court’s fact-finding
function. On appeal from an order interpreting a marital
settlement agreement, we must decide whether the trial court
committed an error of law or abused its discretion.
“[J]udicial discretion” requires action in conformity with
law on facts and circumstances before the trial court after
hearing and due consideration. Such discretion is not
absolute, but must constitute the exercises of sound
discretion. This is especially so where, as here, there is
law to apply. On appeal, a trial court’s decision will
generally not be reversed unless there appears to have
been an abuse of discretion or a fundamental error in
applying correct principles of law.
Stamerro v. Stamerro, 889 A.2d 1251, 1257 (Pa. Super. 2005) (citations,
most quotation marks, and footnote omitted).
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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.
Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009), appeal denied,
995 A.2d 354 (Pa. 2010) (citations and quotation marks omitted)
Here, Father does not assert that the trial court committed an error of
law, but rather challenges the trial court’s exercise of its discretion in
determining toward which of Father’s outstanding debts the escrowed money
should be applied. (See Father’s Brief, at 7-8). Additionally, Father has not
asserted that the trial court’s decision was the “product of partiality,
prejudice, bias or ill will[,]” Mackay, supra at 533, but rather merely
asserts that
. . . this action of the trial court was not in the best interest of
the children and cannot be sustained on any valid ground. Nor is
it in the best interest of his children. Nor is it in the best interest
of the children for their father to be under constant threat of
imprisonment because of artificially elevated levels of
arrearages.
(Father’s Brief, at 7-8) (quotation marks omitted). Notably, Father has not
cited any supporting authority for this contention. (See id.); see also
Pa.R.A.P. 2119(a), (b).
Additionally, after independent review of the certified record we
discern no indication that the trial court’s decision was the “product of
partiality, prejudice, bias or ill will” and therefore discern no abuse of
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discretion. Mackay, supra at 533. Accordingly, Father’s first issue would
not merit relief.
In his second issue, Father claims that the trial court abused its
discretion by imputing an earning capacity of $50,000.00 for him. (See
Father’s Brief, at 8-11). We disagree.
Our standard of review for a review of child support orders is well-
settled:
[T]his Court may only reverse the trial court’s
determination where the order cannot be sustained on any
valid ground. We will not interfere with the broad
discretion afforded the trial court absent an abuse of the
discretion or insufficient evidence to sustain the support
order. . . .
Furthermore, this Court:
must accept findings of the trial court that are
supported by competent evidence of record, as our role
does not include making independent factual
determinations. In addition, with regard to issues of
credibility and weight of the evidence, this Court must
defer to the trial judge who presided over the proceedings
and thus viewed the witnesses first hand.
When the trial court sits as fact finder, the weight to be
assigned the testimony of the witnesses is within its exclusive
province, as are credibility determinations, [and] the court is
free to choose to believe all, part, or none of the evidence
presented. [T]his Court is not free to usurp the trial court’s duty
as the finder of fact.
Mackay, supra at 533 (citations and quotation marks omitted).
“Although a person’s actual earnings usually reflect his earning
capacity, where there is a divergence, the obligation is determined more by
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earning capacity than actual earnings.” Baehr v. Baehr, 889 A.2d 1240,
1244 (Pa. Super. 2005) (citation and quotation marks omitted).
“[O]rdinarily, a party who willfully fails to obtain appropriate employment
will be considered to have an income equal to the party’s earning capacity.
Age, education, training, health, work experience, earnings history and child
care responsibilities are factors which shall be considered in determining
earning capacity.” Id. at 1243 (quoting Pa.R.C.P. 1910.16-2(d)(4)).
Here, the court found that Father’s testimony that he was not capable
of earning over minimum wage was not credible. (See Trial Ct. Op.,
10/24/14, at 5; N.T. Hearing, 10/15/14, at 108-10); see also Mackay,
supra at 533. Accordingly, the court imputed an income to Father equal to
an earning capacity of $50,000.00 a year (net monthly income of
$3,191.00). (See Order, 10/24/14, at 7-8). In calculating this amount, the
court considered Father’s former occupation, education, “minor celebrity
status,” physical capability, and the fact that Father had been providing
private basketball lessons charging fifty dollars an hour. (Id. at 8).
The record supports the trial court’s findings, and we discern no
partiality, prejudice, bias or ill will in the trial court’s exercise of its
discretion. See Mackay, supra at 533. Therefore, we conclude that, the
court did not abuse its discretion in imputing an earning capacity for Father
of $50,000.00 per year and using that amount to calculate his support
obligations. See Baehr, supra at 1243. Father’s second issue would not
merit relief.
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In his third issue, Father claims that the court erred when it rendered
a support ruling without considering a pre-existing support ruling for Father’s
eldest child. (See Father’s Brief, at 11-12). Specifically, he argues that
under Pennsylvania Rule of Civil Procedure 1910.16-7 the trial court should
have considered the expenses incurred by Father’s support for this child and
abused its discretion when it failed to adjust his support obligation
accordingly. (See id.). We disagree.
As stated above, we review child support orders for an abuse of
discretion. See Mackay, supra at 533.
Pennsylvania Rule of Civil Procedure 1910.16-7, which governs awards
of child support when there are multiple families, provides in pertinent part
that
(a) When the total of the obligor’s basic child support obligations
equals fifty percent or less of his or her monthly net income,
there will generally be no deviation from the guideline amount of
support on the ground of the existence of a new family. . . .
(b) When the total of the obligor’s basic support obligations
exceeds fifty percent of his or her monthly net income, the court
may consider a proportional reduction of these obligations. . . .
Pa.R.C.P. 1910.16-7(a), (b). In McCarty v. Smith, 655 A.2d 563 (Pa.
Super 1995), this Court explained that any deviation from the guideline
support “must be based and supported by testimony or evidence[.]” Id. at
566.
Here, Father argues “it was an abuse of discretion for the trial court to
not consider the expenses incurred by [him] as a result of his child support
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obligations in Virginia.” (Father’s Brief, at 12). However, as the trial court
correctly explained
The only evidence [Father] presented with respect to his
Virginia child support obligations was an NBA Players’ Pension
plan print-out and accompanying testimony which indicated his
pension funds were all being directed towards his Virginia child
support obligations. Appellant presented no evidence to
demonstrate that any other funds were being utilized for his
Virginia obligations. [The trial court] did not account for any of
Appellant’s NBA pension funds when calculating its support
determination. Thus, there is no indication that Appellant’s basic
child support obligation exceeds fifty percent (50%) of the
monthly net income the [c]ourt attributed to Appellant for the
period prior to his daughter’s emancipation in Virginia. . . .
(Trial Ct. Op., at 4; see also N.T. Hearing, 6/09/14, at 135-36; N.T.
Hearing, 10/15/14, at 95-97, Exhibit F-14).
The court imputed income for Father of $50,000.00 per year (which
did not include Father’s NBA pension), which the court used to calculate his
support obligation. (See Trial Ct. Op., at 4; Order, 10/24/14, at 8). Father
neither testified, nor entered any evidence to support that the total of his
child support obligations equaled fifty percent or more of his net monthly
income, which would have allowed the court to “consider a proportional
reduction of these obligations[.]” Pa.R.C.P1910.16-7(b); see McCarty,
supra at 566.
Furthermore, upon independent review, we discern no partiality,
prejudice, bias or ill will in the trial court’s determination and therefore
discern no abuse of discretion. See Mackay, supra at 533. Accordingly,
Father’s third issue would not merit relief.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2015
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