Holt, E. v. Kline, P.

J-A02032-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ELIZABETH HOLT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL S. KLINE :
:
Appellant : No. 211 WDA 2022
Appeal from the Order Entered January 27, 2022
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD16-000209-005, Pacses 472115780
BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: FEBRUARY 6, 2023
Paul S. Kline (Appellant), pro se1 appeals from the order denying his
exceptions to the trial court’s award of child support. We affirm.
The trial court summarized the case history as follows:
[Elizabeth Holt (Mother)] and [Appellant] are the parents of
one minor child (“Child”) born in 2006. Mother is 54 years old and
is employed as a nurse. [Appellant] is 56 years old and is an
attorney who was recognized as being disabled by [the] Social
Security Administration in 2016.[2] As of the time of the hearing,
[Appellant] exercised no overnight custody with the Child.
The parties divorced by decree on August 1, 2019, and a
support order was entered on September 9, 2019, following the
settlement of the economic issues raised in the divorce. At that
time, [Appellant’s] total monthly support obligation was $813 per
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Mother also appears pro se.
2 Appellant, a former attorney with Reed Smith, was diagnosed with multiple
sclerosis. Hearing Officer Report, 11/24/20, at 2.
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month. That amount was later reduced to $716 per month after
[Appellant] paid his share of the amount owed for Child’s braces.
From here, the procedural history of this matter is skewed
by the onset of the Covid-19 Pandemic and its effect on the
[c]ourt’s schedule. [Appellant] filed a Petition to Modify Support
Order on March 5, 2020, and a hearing was scheduled for May 24,
2020[, but eventually occurred] on November 24, 2020.
At the hearing, during which [Appellant] was represented by
counsel and Mother appeared pro se, [Appellant] testified to
receiving $19,001 per year in private disability insurance, $11,256
per year in supplemental disability insurance, and $30,360 per
year in Social Security Disability payments. [Appellant] also
testified to [taking] IRA withdrawals in 2019 totaling $93,091
which he used for personal expenses. Given [Appellant’s] ability
to withdraw from his IRAs as needed, the Hearing Officer found it
appropriate to impute [Appellant] with an additional $20,000 in
annual income and ultimately calculated [Appellant’s] monthly net
income to be $9,765.97.
Trial Court Opinion, 5/13/22, at 1-2 (footnote added).
With regard to Mother,
[she] submitted two paystubs from her employer and the Hearing
Officer calculated Mother’s monthly net income from her employer
to be $4,181.45. Mother also receives the Child’s monthly social
security derivative benefit of $1,265[FN1], resulting in a total
monthly net income of $5,446.45 and a basic child support
obligation of $1,186.42. However, pursuant to Pa.R.Civ.P.
1910.16-2 [(Rule 16-2)], the Hearing Officer was also required to
deduct the Child’s social security benefit from [Appellant’s]
support obligation, effectively bringing [Appellant’s] support
obligation down to zero. For several reasons … the Hearing Officer
ultimately deviated from the guideline amount by 50% and
calculated [Appellant’s] final support obligation of $514.63 per
month.
[FN1]This amount was $1,245 at the time of the hearing but
increased by $20 to $1,265 on January 1, 2020.
Id. at 2 (footnote in original).
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Appellant filed exceptions to the Hearing Officer’s recommendation. The
trial court dismissed the exceptions and Appellant timely appealed. Appellant
and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for review:
1. Was it legal error to award Mother a 50% upward child support
deviation from guidelines when, (a) based on Rule 16-2(b)
derivative adjustments to income that are perceived as “unjust
and inappropriate”, but nullifying that Rule is not a listed deviation
Factor, (b) a deviation is not “necessary”, and (c) deviating would
violate the Parties’ Settlement Agreement and Final Order on
Consent?
2. Was it an abuse of discretion to dismiss [Appellant’s Pa.R.C.P.
1910.17 (Rule 17)] claim for retroactivity based on [Appellant’s]
three-week delay in filing?
3. Was it legal error and an abuse of discretion to penalize
[Appellant] $20,000 where the Trial Court[] mistakenly believes
transfer to Mother was by tax-free rollover when [Appellant’s]
testimony is contrary, and, when a [Qualified Domestic Relations
Order (QDRO)] is not on the docket?
4. Was it legal error for the Trial Court not to consider and factor
into the deviation analysis [Appellant’s] federally-approved
disability under Pa.R.C.P. 1910.16-5 (Rule 16-5)]?
5. Was it legal error for the Trial Court to consider income
distributions from [Appellant’s] post-[Equitable Distribution (ED)]
IRA asset also as income when calculating child support, when
imputing $20,000 of “hypothetical” income, and when applying a
retroactive child support deviation?
Appellant’s Brief at 3 (reordered for disposition).
We review support awards for an abuse of discretion. Spahr v.
Spahr, 869 A.2d 548, 551 (Pa. Super. 2005). “A finding that the court abused
its discretion requires proof of more than a mere error in judgment, but rather
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evidence that the law was misapplied or overridden, or that the judgment was
manifestly unreasonable or based on bias, ill will, prejudice or partiality.” Id.(citation omitted). “Support orders ‘must be fair, non-confiscatory and
attendant to the circumstances of the parties.’” Id. at 552 (quoting Fennell
v. Fennell, 753 A.2d 866, 868 (Pa. Super. 2000).
Support actions are governed by Pennsylvania Rules of Civil Procedure
1910.1 through 1910.50. Pertinently, Pa.R.C.P. 1910.16-1(d) provides:
Rule 1910.16-1. Amount of Support. Support Guidelines
* * *
(d) Rebuttable Presumption. If the trier-of-fact determines that
a party has a duty to pay support, there is a rebuttable
presumption that the guideline-calculated support obligation is the
correct support obligation.
(1) The presumption is rebutted if the trier-of-fact
concludes in a written finding or states on the record that
the guideline support obligation is unjust or
inappropriate.
(2) The trier-of-fact shall consider the child’s and
parties’ special needs and obligations, and apply the
Pa.R.C.P. No. 1910.16-5 deviation factors, as
appropriate.
Pa.R.C.P. 1910.16-1(d) (2020) (emphasis added). With this in mind, we
address the issues presented by Appellant.
1. Whether the trial court erred in awarding child support
which deviated 50% upward from the guidelines.
In his first issue, Appellant claims the trial court improperly adopted a
50% upward deviation from the support guidelines
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(a) based on a perceived unjustness and inappropriateness in the
proper application of [Pa.R.C.P. 91016-2(b) (Rule 16-2(b)], where
such Rule is not a listed deviation factor; (b) deviating is not
“necessary”, and (c) deviating violates the parties’ settlement
agreement and Final Order on Consent.
Appellant’s Brief at 13. We address each claim in turn.
First, Appellant claims the trial court improperly applied Rule 16-2(b) to
arrive at an “unjust and inappropriate” result. Id. According to Appellant,
deviation is to be granted “only pursuant to an exclusive list” of the nine
deviation factors in Rule 16-5(b). Id. Therefore, Appellant asserts it was
“legal error to grant Mother a deviation based on the [Hearing Officer’s]
recommendation that ‘the guideline-calculated support amount, Rule 16-5(b),
is unjust and inappropriate.’” Id.“[T]he support guidelines set forth the amount of support which a
spouse or parent should pay on the basis of both parties’ net monthly incomes
... and the number of persons being supported.” Pa.R.C.P. 1910.16-1(a).
However, “a court generally has reasonable discretion to deviate from the
guidelines if the record supports the deviation.” Silver v. Pinskey, 981 A.2d
284, 296 (Pa. Super. 2009). Rule 16-5 provides:
(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.
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(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 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 (2020) (emphasis added).
Rule 16-2 prescribes the impact of a child’s social security derivative
benefits on a parent’s support obligation:
If the obligee receives the child’s benefit, the trier-of-fact
shall deduct the child’s benefit from the basic child support
obligation of the party whose retirement or disability created the
child’s benefit.
Pa.R.C.P. 1910.16-2(b)(2)(B).
In the Report and Recommendations, the Hearing Officer addressed the
standard of living of the parties and Child, as well as Child’s best interests:
[Appellant] leads a very comfortable lifestyle in comparison to
Mother and [Child]. [Appellant] owns and resides in a patio home
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in Presto, PA that cost $373,000.00 in May of 2018 when it was
purchased, which was almost $60,000.00 more than the sale price
of the parties’ former marital residence when it was sold.
According to [Appellant’s] budget, [Appellant’s] monthly
mortgage payment is $2,393.09 (on which [Appellant] testified a
balance remains of over $284,000) plus a $285.00 per month HOA
fee for a total “house” payment of $2,678.09 for one person.
Mother, to the contrary, did not have the ability to purchase a
home once the marital residence was sold, and so she rents her
current residence in Upper St. Clair at a cost of $1,700.00 per
month (Ex, Q). Remarkably, and rather disingenuously,
[Appellant] chastised Mother for choosing to remain in Upper St.
Clair with the [C]hild, stating in an Our Family Wizard message of
August 3, 2020 to her that “Please consider the choices you made
by living in Upper St. Clair and keeping [Child] with the most
affluent children. There are plenty of ‘less privileged’ kids and
reasonably priced apartments in the Crafton, Carnegie, Bridgeville
area, Chartier’s high school is excellent, It’s not Upper St. Clair,
but still very good. My vote always would have been in favor of a
change for [Child]. No doubt that would be traumatic, but I see
the good outweighing the bad.” (Ex. E, #3, emphasis added).
[Appellant] also testified that he financed an $84,000.00 Porsche
SUV and pays $1,147.34 per month for this vehicle, on which he
has 2½ more years to pay (Ex. 25). [Appellant] testified that he
is considering selling his vehicle because “it’s too expensive” and
he “doesn’t enjoy it”. He further testified that if he does sell, he
is not sure if he will purchase another vehicle, stating he “doesn’t
feel as confident as he used to”, or maybe he would buy a small
used $4,000.00 Toyota. The Hearing Officer does not find
[Appellant’s] testimony credible, especially since he proudly
acknowledged owning a Porsche, a luxury vehicle, since 2001. If,
however, [Appellant] would find that a vehicle is no longer suitable
for him and sells the Porsche, [Appellant] would eliminate over
$1,100.00 in expense (not including insurance) from his budget.
Mother, to the contrary, testified she leased a “bottom line” Toyota
Corolla at a cost of $266.00 per month. Interestingly, as Mother
pointed out during her testimony, each party listed $60.00 per
month for fuel for his/her vehicle – yet Mother is the only party
between the two with a work commute.
Additionally, as discussed above, Father has significant retirement
assets totaling over $300,000.00 from which he withdraws funds
as needed to supplement his income and pay for his expenses.
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Father’s monthly expenses for just himself total $6,350.36
according to his budget (Ex. 25), more than Mother’s budget for
three (Ex. Q). Additionally, Mother credibly testified that she is
the primary caretaker for her older disabled child and incurs
additional expenses, including an emotional support dog. Mother
testified that due to a loophole with Medicaid, she will incur
additional medical cost of at least $200.00 per month.
The Pennsylvania Support Guidelines are very clear in their
pronouncement that “the support of a spouse or child is a priority
obligation so that a party is expected to meet this obligation by
adjusting his or her other expenditures.” Pa.R.C.P, 1910.16-1(a)
(emphasis added).
Even more compelling, however, is the need to deviate for the
best interests of [Child]. The reallocation of Mother’s share
of the derivative benefits to the [C]hild, such that [Child]
is now the designated recipient of 100% of the benefit, did
nothing to increase the amount of the benefit being paid
into the household of Mother and [C]hild. Before the
reallocation, the total income [from the derivative benefit] was
$1,244.00 per month and after the reallocation, the total income
was $1,245.00 per month. Mother was also receiving the $622.00
per month in base child support. The impact, however, that
the reallocation has on the calculation of child support is
substantial. When [Appellant’s] net monthly income of $9,65.97
is combined with Mother’s net monthly income and [Child’s] social
security benefit which totals $5,446.45, [Appellant’s] monthly
support obligation would be $1,186.42 from which [Child’s]
$1,265.00 per[-]month benefit would be subtracted pursuant to
[Rule 16-2], thereby reducing the child support to zero ($0.00)
and entirely absolving [Appellant] from any financial responsibility
for base child support and increasing his available income by
$622.00 per month, while Mother’s household income
concurrently suffers a loss of $622.00 per month. This is an
absurd result, and one that is prejudicial to [Child’s] best interests
and irrevocably harmful to [Child], especially when considering
the significant income and assets available to [Appellant] which
allow him to afford such luxuries as an $1,100.00 per month
Porsche payment, an amount equal to almost double that of his
current $622.00 per month base child support obligation under
the September 2019 Order.
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There is one additional [factor] that the Hearing Officer finds is
applicable in this case. The evidence was undisputed that
[Appellant] exercises no overnight custody of [Child].
Additionally, Mother testified that in 2020 as of the date of the
hearing, [Appellant] exercised only approximately 20 hours of
partial custody with [Child], and nothing since late March or early
April 2020. While this could be explained by the pandemic, even
[Appellant] acknowledged in his September 2020 discovery
responses that for the last several years prior to the pandemic,
[Child] spent only about 5% of the week with him. The 2010
Explanatory Comment to Pa.R.C.P. 1910.16-4 states as follows:
“The basic support schedule incorporates an assumption that the
children spend 30% of the time with the obligor and that the
obligor makes direct expenditures on their behalf during that time.
Upward deviation should be considered in cases in which the
obligor has little or no contact with the children.” (emphasis
added).
The Hearing Officer is mandated to apply Rule 1910.16-
2(b)(2)(i)(A),(B) regarding treatment of [Child’s] social security
derivative benefits. This Hearing Officer finds that the guideline-
calculated support amount, after applying this Rule, is unjust and
inappropriate and warrants a significant deviation as authorized
by Pa.R.C.P. 1910.16-2(d). Given the financial inequities that
result from application of the guidelines, the Master finds that
a 50% deviation is appropriate under the factual circumstances of
this case and authorized by the deviation factors outlined
hereinabove.
Hearing Officer Report and Recommendation, 8/16/21, at 6-7 (unnumbered)
(italic emphasis in original, bold emphasis added).
The trial court accepted the Hearing Officer’s recommendation,
explaining:
In the present case, the Hearing Officer considered the assets of
the parties, their standards of living, and other relevant factors as
required by Rule 1910.16-5 and found that [Appellant] could
easily provide more support than the guidelines would require now
that the derivative benefit is allocated in favor of the Child.
[Appellant] testified to owning a home in a better area than where
the parties had previously been living and to owning several
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luxury cars since 2001. (Tr. 72:1 -5, 73:12-16) Based on his
standard of living, [Appellant] would still have ample means for
his reasonable living expenses after the upwards deviation.
[Appellant’s] continued payments are also necessary as
demonstrated by Mother’s testimony regarding her expenses as
the Child’s primary caretaker. (Tr. 109-115) In Ricco [v.
Novitski, 874 A.2d 75 (Pa. Super. 2005),] the [Superior] Court
specifically noted that a party cannot be excused from their
support obligation due to lucky circumstances unless they
are genuinely unable to contribute to the child’s reasonable
needs. As such, [the trial court] found that the Hearing Officer’s
[recommendation] was neither punitive nor confiscatory and that
the deviation was both necessary and supported by the record.
This [c]ourt is also troubled by the ramifications of
[Appellant’s] argument. If [Appellant] is successful, then the
[c]ourt would be unable to deviate from the guidelines in matters
where a party’s support obligation was adjusted due to a
derivative benefit. Such a finding would seriously impair the
[c]ourt’s ability to render judgments that promote the best
interests of the child.
Trial Court Opinion, 5/13/22, at 7-8 (emphasis added).
Our review reveals no error or abuse of discretion. The Hearing Officer
and the trial court properly considered and applied the applicable Rules of Civil
Procedure in deviating from the support guidelines.
Second, Appellant claims deviation is not “necessary.” Appellant’s Brief
at 14-15. Appellant asserts the trial court improperly failed to determine
whether Mother can “meet” her expenses, or whether a deviation is
“necessary” for Mother to meet her expenses. Id. at 16. Appellant argues:
Where, as here, Mother’s expenses are the solitary basis used by
the trial court to demonstrate [Child’s] “reasonable needs” or what
is “necessary,” the record contains insufficient evidence for Mother
to meet her burden to demonstrate that a deviation is necessary,
much less a 50% deviation. Insufficient evidence is available to
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support the “necessity” of a 50% upward deviation, so the
deviation should be reversed.
Id. at 18-19 (footnote and some capitalization omitted).
Our review discloses that Appellant did not preserve this issue in his
Pa.R.A.P. 1925(b) statement, which identified the following issues:
1. Legal error to dismiss [Appellant’s] 1910.17(a) retroactivity
claim based on Mother’s state of mind; irrelevant here.
2. Legal error to impute $20K income to [Appellant] based on
finding that transfer to Mother was taxfree, yet no QDRO.
3. Legal error to deviate from satisfied Child Support. Guideline
to nullify proper use of 1910.16-2 derivatives.
4. Legal error not to factor into the deviation analysis
[Appellant’s] federally-approved disability under 1910.16-
5(b)(1).
5. Legal error to consider the value of [Appellant’s] IRA asset as
a deviation factor and as income available for support. The
trial court did not address the issue in its opinion.
Concise Statement, 3/8/22. Because Appellant did not raise this issue in his
concise statement, it is not preserved for our review. See Pa.R.A.P. 302(a)
(“Issues not raised in the trial court are waived and cannot be raised for the
first time on appeal.”); Yates v. Yates, 963 A.2d 535, 542 (Pa. Super. 2008)
(claims not included in the Rule 1925(b) statement are waived for appellate
review).
Finally, Appellant claims the deviation violated the parties’ 2019 Child
Support Settlement Agreement. Appellant’s Brief at 19. Again, Appellant
waived this issue by not including it in his Pa.R.A.P. 1925(b) statement. See
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Pa.R.A.P. 302(a); Yates, 963 A.2d at 542. Appellant’s first issue does not
merit relief.
2. Whether the trial court erred in denying seven months’
retroactive credit for Appellant’s claim based on Rule 17.
Appellant next argues the trial court erred in not awarding seven
months’ retroactive credit to Appellant based on his Rule 17 claim. Appellant’s
Brief at 25. Appellant argues the Hearing Officer improperly conditioned credit
on whether Mother “willfully” failed to provide Appellant with notice. Id.
Appellant acknowledges that Rule 17 provides:
[M]odification of an existing court order may be retroactive to a
date preceding the date of filing if the petitioner was precluded
from filing a petition for modification by reason of a significant
physical or mental disability, misrepresentation of another party
or other compelling reason and if the petitioner, when no longer
precluded, promptly filed a petition.
Appellant’s Brief at 25-26 (emphasis omitted) (quoting Pa.R.C.P. 1910.17(a)).
Appellant claims he established “compelling reasons” based on his (1) pro se
status and lack of experience in state-court and family law; (2) physical
condition which prevented him from timely determining the validity of a
modification claim; (3) lack of written notification from the Social Security
Administration; and (4) filing for modification three weeks after receiving
verbal notice from Mother. Appellant’s Brief at 27-28. Appellant’s issue is
unavailing.
The Hearing Officer explained:
Pursuant to 23 Pa.C.S.A. § 4353(a), parties to a support
proceeding are to notify domestic relations and other parties in
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writing or in person within seven days “of any material change in
circumstances relevant to the level of support of the
administration of the support order, including but not limited to:
(1) change of employment; and (2) change of personal address
or change of address of any child receiving support.”
Subparagraph (d) of that statute requires that failure to
comply with this section must be “willful” in order to be
adjudged in contempt. Additionally, the case law addressing
Section 4352 deals strictly with situations where an individual
willfully fails to report a substantial increase in his income and
where that party’s blatant misrepresentation in that regard
precluded the other party from filing a petition to modify. See
Krebs v. Krebs, 944 A.2d 768 (Pa. Super. 2008) and Maue v.
Gilbert, 839 A.2d 430 (Pa. Super. 2003). Willfulness and
misrepresentations require knowledge, and by [Appellant’s]
own admission, and Mother’s credible testimony, Mother
lacked any knowledge that the Social Security
Administration’s shifting its allocation of benefits to [Child]
— when the amount of the benefits did not increase —
would alter the calculation of [Appellant’s] child support
obligation.
Hearing Officer Report and Recommendation, 8/16/21, at 3 (Hearing Officer’s
emphasis omitted, emphasis added). We adopt the Hearing Officer’s sound
reasoning in concluding that Appellant’s second issue lacks merit.
3. Whether the trial court improperly penalized Appellant
$20,000 based on a mistaken belief that the transfer of
funds to Mother was by a tax-free rollover.
Appellant argues the trial court penalized him for withdrawing $20,000
from his IRA accounts, because he withdrew the money to comply with the
parties’ 2019 ED settlement. Appellant’s Brief at 29-30. Appellant asserts:
(1) [Appellant’s] unrefuted testimony is that the additional IRA
withdrawals in 2019 were “taxable” to fund a $70,500 settlement
with Mother that he paid in cash, (2) by imputing hypothetical
withdrawals as income to [Appellant] from a post-ED-settled IRA
account, both the [Hearing Officer] and [t]rial [c]ourt were
double-dipping, and (3) the [t]rial [c]ourt’s basis to impute
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hypothetical income is founded on an erroneous belief that the
transfer was rolled over and not taxed, rather than withdrawn and
taxed; however, an IRA rollover would have required a [QDRO]
pursuant to federal law, and a QDRO simply is not on the Docket.
Appellant’s Brief at 31-32 (citations, footnote, and emphasis omitted).
The trial court addressed this issue as follows:
“When determining income available for child support, the
court must consider all forms of income.” Berry v. Berry, 898
A.2d 1100, 1104 (Pa. Super. 2006) (quoting Miller v. Miller, 783
A.2d 832, 835 (Pa. Super. 2001) (citation omitted)). Pa.R.Civ.P.
1910.16-2(a)(4) specifically highlights “pensions and all forms of
retirement” in its summary of income sources to be considered in
the calculation of a party’s monthly gross income. Finally, it is
this [c]ourt’s obligation to consider the full nature and extent of a
party’s financial resources. Com. ex rel. Hagerty v. Eyster, 286
A.2d 665, 668 (Pa. Super. 1981).
Here, when asked about the disparity in his withdrawals
from 2019 to 2020, [Appellant] stated the following:
Q: Why were your withdrawals in 2019 $93,091 and this year
they are approximately half of that?
A: I was paying attorneys’ fees. I was paying taxes. I owed
an additional amount in taxes. I was paying Medicare, I was
paying car payments, I was paying mortgage payments. If
you add up the amounts of the disability payments that come
in, they just cover my mortgage. So I have to withdraw from
my accounts to pay my expenses.
(Tr. 15:1-9) Additionally, [Appellant] had already withdrawn
$43,017[FN2] as of the hearing in 2020. At that point the need to
pay his equitable distribution payments was well behind him and
there were still five months remaining in the year. It is reasonable
to expect that, barring a significant change in his expenses,
[Appellant] would withdraw at least half that amount in the
remaining months of 2020 (for a total that would still be $30,074
less than his 2019 withdrawals). As such, this [c]ourt found the
Hearing Officer’s calculation of [Appellant’s] income to be
reasonable and appropriate.
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[FN2]The Hearing Officer’s Report and Recommendation ultimately
revise[d] this amount to $50,536.
Trial Court Opinion, 5/13/22, at 6-7. We discern no abuse of discretion or
error in the trial court’s determination and adopt its analysis in concluding
Appellant’s third issue lacks merit. See id.
4. Whether it was legal error for the trial court to not
consider and factor into its analysis Appellant’s federally
approved disability under Rule 16-5(b)(1).
Appellant next argues the trial court erred by failing to consider his
“unusual needs and unusual fixed obligations” in determining his support
obligation. Appellant’s Brief at 33. Appellant claims “his diagnosis with
multiple sclerosis is fairly unusual and, due to his inability to work, drive, or
care for himself, his needs in his mid-50’s are unusual as well.” Id. Appellant
asserts the trial court’s deviation analysis was incomplete, as his disability
“affects other factors (5, 6, 7, and 9) relied upon by Mother and an
“overarching” criterion, i.e., [Appellant’s] ability to pay.” Id. at 34. According
to Appellant, the trial court improperly failed to consider “this relevant,
countervailing deviation Factor.” Id.
Again, the trial court has capably rebutted Appellant’s argument:
“[A] trial court generally has discretion to deviate from the
guideline amount in a support case if the record supports the
deviation. Silver[,] 981 A.2d [at] 296 … (citing Ricco[] 874 A.2d
[at] 82 …). When determining whether a deviation is warranted,
the [c]ourt must consider “all the relevant factors” and any one
factor is not necessarily determinative. Suzanne D. v. Stephen
W., 65 A.3d 965, 972-73 (Pa. Super. 2013) (citation omitted).
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Here, there is no evidence to suggest that the Hearing
Officer did not consider [Appellant’s] disability when deciding to
deviate from the guidelines. To the contrary, the Hearing Officer’s
report goes through a lengthy analysis of several of the deviation
factors including the relative assets of the parties, the standard of
living of the parties, and [Child’s] best interest. While it is
undisputed that [Appellant] is disabled, that is but one of
several factors which the [c]ourt must weigh when
determining to deviate from the guidelines. Without
diminishing [Appellant’s] disability, the [c]ourt noted that
[Appellant] is still a member of the Pennsylvania Bar (Tr.
50:22) and continues to practice law (Tr. 64:9-15).
Therefore, after considering all relevant factors, [the trial court]
did not find that a deviation based on [Appellant’s] disability was
warranted at this time.
Trial Court Opinion, 5/13/22, at 8-9.
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. Sichelstiel v. Sichelstiel, 272 A.3d 530, 534 (Pa. Super.
2022). As the evidence supports the trial court’s analysis, we discern no error
or abuse of discretion with regard to Appellant’s fourth issue.
5. Whether the trial court erred in considering withdrawals
from Appellant’s post-settlement IRA as income when
deviating from the support guidelines.
In his final issue, Appellant claims the trial court erred in considering his
income from a non-marital IRA account opened after the parties’ equitable
distribution. Appellant’s Brief at 34-35. Appellant contends:
The trial court triple dipped into the same IRA when imputing
$20,000 of income, and then quadrupled-dipped into the same
IRA when adjusting [Appellant’s] income for a deviation.
Id. at 37 (some capitalization omitted).
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The trial court responded:
[Appellant] cites Miller v. Miller, 783 A.2d 832, 835 (Pa. Super.
2001), as a comparable authority on this issue. The Court in
Miller first acknowledged that money included in an individual’s
income for child support purposes cannot also be a marital asset
subject to equitable distribution. It then held the reverse to also
be true: money received from the sale of a marital asset cannot
also be included in an individual’s income for purpose of
determining child support.
Here, as [Appellant] stated several times throughout
his brief, his IRA was determined to be a “nonmarital”
asset at settlement. And so, there is no “double dipping”
because there was no initial “dip”. [Appellant’s] IRAs were
held separate and apart during equitable distribution and thus can
and should be considered when determining [Appellant’s] income
for [] calculating child support. Based on the holding in Miller,
there may have been “double dipping” if the retirement savings
had been found to be a marital asset subject to equitable
distribution, but as that was not the case, this [c]ourt found no
error with the Hearing Officer’s decision.
In the alternative, [Appellant] also argues that his
retirement assets should not be considered because he plans to
transfer the assets to an irrevocable trust for the benefit of Child
as soon as he enters an extended care facility. This [c]ourt cannot
consider plans that have not yet come to fruition. However, in the
event that [Appellant] had completed such a transfer, it should be
noted that the Supreme Court of Pennsylvania has held that
contributions to a trust are not to be considered in determining
whether a parent’s support obligation should be reduced.
Hanrahan v. Bakker, 186 A.3d 958, 980 (Pa. 2018).
Trial Court Opinion, 5/13/22, at 9-10. We agree with the trial court’s primary
and alternative analyses. See id. Thus, Appellant’s fifth issue does not merit
relief.
Order affirmed.
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J-A02032-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2023
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