Kutsch, D. v. Anthony, R.

J. S57003/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
DEBORAH A. KUTSCH, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 252 WDA 2016
:
RAYMOND D. ANTHONY :
Appeal from the Order Entered January 19, 2016,
in the Court of Common Pleas of Armstrong County
Civil Division at Nos. Docket Number 990342,
PACSES Case Number 571101351
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 15, 2016
Deborah A. Kutsch (“Mother”) appeals from the order entered in the
Court of Common Pleas of Armstrong County on January 19, 2016
sustaining, in part, and overruling, in part, her exceptions to the findings
and recommendations of the hearing officer and increasing the child support
obligation of Raymond D. Anthony (“Father”) to $572 per month, retroactive
to June 8, 2015, and deferring collection of Father’s arrearages until his
support obligation ends. We affirm.
The trial court set forth the following factual and procedural history:
[Mother] initiated this case by filing a
complaint for child and spousal support on August 9,
1999. The complaint regarded, in part, the parties’
minor child, [] [born] December [], 1997 (the
“Child”). On September 15, 1999, the Court entered
an interim support order with a monthly support
* Retired Senior Judge assigned to the Superior Court.
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obligation of $838.00, which included a basic
obligation of $788.00 together with $50.00 per
month in arrearages. [Mother’s] net monthly income
at that time was calculated to be $1,731.01 per
month, which included a substantial amount from
“USWA LOCAL 196.” [Father] was at that time
working full time for Allegheny Ludlum Corporation,
now Allegheny Technologies, Inc. (“ATI”). His
support payments were made via wage attachment.
On December 7, 1999, the Court further ordered
[Father] to pay $200.00 per month toward childcare
expenses based on the parties’ agreement to that
effect. Other than several routine orders for the
attachment of [Father’s] unemployment benefits, no
substantive activity occurred in the case for several
years. A divorce decree from Allegheny County was
cross-filed with this Court on December 27, 2004,
along with an accompanying agreement that, among
other things, terminated [Father’s] spousal support
obligation.
On January 25, 2005, [Father] filed a petition
to modify his support obligation. In his petition,
[Father] stated that [Mother] was terminated from
her employment on January 10, 2005, and therefore
his payment of childcare expenses was no longer
necessary. He also sought reimbursement for
certain overpayments of spousal support. An initial
conference was scheduled, but [Mother] failed to
appear. The Court accordingly terminated the
existing support order on February 17, 2005.
[Mother] requested a hearing de novo, at which the
parties appeared and “offered various stipulations of
fact and an agreed upon Order of Support.”
In the stipulations, the parties agreed, in part,
that 1) there had been no need for childcare
expenses since January 3, 2005; 2) [Father’s]
monthly net income was $3,100.00; 3) [Mother’s]
imputed monthly net income was $2,400.00; and
4) [Father’s] monthly child support obligation would
be $572.00, with no arrearages due. The
accompanying interim support order, dated
March 21, 2005 and entered March 23, 2005,
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includes these stipulations and also provides for the
allocation of unreimbursed medical expenses (57%
to [Father] and 43% to [Mother]) after the annual
payment of the first $250.00 of such expenses by
[Mother]. The agreed-upon support arrangement
remained in effect for the next several years, during
which [Father’s] payment obligation remained at
either $572.00 or $622.00 monthly.[Footnote 1]
[Footnote 1] The record does not
indicate why, at times, $50.00 in
arrearages were added onto [Father’s]
basic monthly support obligation of
$572.00. In the agreed-upon interim
order [dated] March 21, 2005,
arrearages were set at $0.00. In any
event, [Father’s] basic support obligation
remained at $572.00.
[Father] retired from ATI in 2008, after which
the necessary Qualified Domestic Relations Orders
(“QDROs”) were entered by the Court to ensure that
[Father’s] monthly support obligation would be paid
from his ATI pension. The QDROs were entered on
December 4, 2008 and February 2, 2009. [Father’s]
basic monthly support obligation did not change.
[Mother] filed a petition to modify the support
obligation on February 4, 2010. In her petition,
[Mother] states that the case had not been reviewed
in more than three years and that she was then
homeschooling the Child, who had been diagnosed
with Tourette Syndrome. After an initial conference
was held, the Court dismissed [Mother’s] petition,
finding that “there were no substantial changes in
circumstances to warrant a modification of current
support.” Neither party requested a hearing
de novo, and the case again [lay] dormant for
approximately the next five years.
[Father] filed the instant petition to modify on
June 9, 2015, in which he alleges that [Mother] did
not comply with the terms of the March 21, 2005
support order in that she 1) did not pay the first
$250.00 of annual unreimbursed medical expenses,
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and 2) did not pay 43 percent of the actual expenses
incurred for the Child’s orthodontic care. [Father]
paid 100 percent of these expenses and sought
reimbursement. After an initial support conference,
the Court determined that [Mother’s] imputed net
monthly income remained $2,400.00, and calculated
[Mother’s] actual net monthly income to be
$2,526.04. The monthly support obligation thus was
reduced to $495.00, which included $45.00 per
month in arrearages. The interim order is effective
as of the date the domestic relations section received
[Mother’s] petition, or June 8, 2015. [Mother]
requested a hearing de novo, which was conducted
by the Hearing Officer on August 31, 2015. Both
parties appeared at the hearing pro se.
In his findings, the Hearing Officer imputed to
[Mother] a net monthly income of $2,484.42 based
on her prior employment with the local union. The
Hearing Officer declined to reduce [Mother’s]
imputed income because he concluded that her
embezzlement activity, which resulted in criminal
charges and her employment termination, was
voluntary. The Hearing Officer calculated [Father’s]
net monthly income based on his monthly pension
benefit from ATI. The Hearing Officer declined to
consider certain household expenses submitted by
[Mother], concluding that the monthly obligation
generated by the support guidelines automatically
would include ordinary daily living expenses and that
none of the expenses submitted by [Mother] were
extraordinary. Finally, although the parties appeared
to agree that [Father] had not seen the Child in a
period of several years, the Hearing Officer did not
recommend a deviation from the guideline support
amount because he concluded that none of the
deviation factors set forth at Pa.R.Civ.P. 1910.16-5
were applicable. The Hearing Officer ultimately
recommended a monthly support obligation of
$495.00, including $45.00 toward arrearages. An
interim order of court reflecting this amount was
entered on September 21, 2015.[Footnote 2]
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[Footnote 2] At the de novo hearing,
[Father] stated that the issue giving rise
to his modification petition, namely, the
reimbursement of certain medical
expenses, had been resolved by
agreement of the parties prior to the
hearing.
[Mother] filed timely exceptions on October 7,
2015, wherein she raised 31 issues regarding the
Hearing Officer’s alleged bias against her, the
calculation of her earning capacity, the calculation of
[Father’s] net monthly income, the Hearing Officer’s
credibility determinations, the Hearing Officer’s
failure to deviate from the guideline support amount,
and certain of the Hearing Officer’s evidentiary
rulings. At argument, [Mother], who was then
represented by counsel, agreed that her exceptions
reduced essentially to the following: 1) the
imputation to her of a $35,000.00 annual salary,
2) the failure of the Hearing Officer to make an
upward deviation in the support obligation based on
the lack of time [Father] has spent with the Child,
and 3) the Hearing Officer’s refusal to attribute
additional income to [Father].
The Court overruled in part, and sustained in
part, [Mother’s] exceptions. The Court found no
error or abuse of discretion by the Hearing Officer in
his calculations of the parties’ imputed and actual net
monthly incomes. The Court did, however, conclude
that an upward deviation in the support obligation
was warranted due to [Father’s] having spent no
time with the Child for several years. The Court
therefore ordered that the support obligation be
increased back to its former amount of $572.00 per
month, retroactive to June 8, 2015. The Court also
made any arrearages payable after the basic support
obligation ends.[Footnote 3] This appeal followed.
[Footnote 3] The Child reached 18 years
of age on December 1, 2015. He will
graduate from high school in or about
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June 2016. The support obligation
presumably will terminate at that time.
Trial court opinion, 3/17/16 at 1-7 (citations to record omitted; emphasis in
original).
Mother raises the following issues for our review:
I. Whether the Court committed an error of law
and/or abused its discretion in failing to use its
authority to remand this case for a full
evidentiary hearing into [Father’s] finances for
the past fifteen years and to order support be
recalculated retroactively based on those
findings?
II. Whether the Court committed an error of law
and/or abused its discretion in basing
[Father’s] support obligation on his post
retirement income rather than on the income
he was earning prior to his early, voluntary
retirement?
III. Whether the Court committed an error of law
and/or abused its discretion in assigning
[Mother] a $35,000.00 earning capacity
without taking all factors into consideration?
IV. Whether the Court committed an error of law
and/or abused its discretion by failing to
consider Rule 1910.16-6 in regard to the
child’s extracurricular expenses and in failing
to order [Father] to reimburse [Mother] for his
proportionate share of those expenses?
V. Whether the Court committed an error of law
and/or abused its discretion by failing to
consider and give proper weight to all things
that affect the best interest of the child in this
case?
Mother’s brief at 4.
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When reviewing a child support order, we employ the following
standard of review:
[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. 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.
W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa.Super. 2014) (citations omitted). A
finding of an abuse of discretion must rest upon a showing by clear and
convincing evidence, and the trial court will be upheld on any valid ground.
Baehr v. Baehr, 889 A.2d 1240, 1243 (Pa.Super. 2005). Additionally, the
fact-finder, having heard the witnesses, is entitled to weigh the evidence and
assess its credibility. Id. at 1245.
Mother first complains that the trial court abused its discretion in
failing to remand the case back to the hearing officer for “a full evidentiary
hearing into [Father’s] finances for the past [15] years and to order support
be recalculated retroactively based on those findings.” (Mother’s brief at
18.) Mother’s argument on this issue sets forth nothing more than her
displeasure with the January 19, 2016 support order that is the subject of
this appeal and her desire for a “do-over.” She complains that “[t]hroughout
the de novo hearing, [Father’s] testimony continued to be inconsistent[,
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but] [e]ven so, the lower court has continued to give him credibility.”
(Mother’s brief at 25.) She then rehashes Father’s testimony and claims an
abuse of discretion because the fact-finder did not weigh the evidence as she
wished and made credibility determinations that she disliked. Our role as an
appellate court is not to reweigh the evidence and/or reassess credibility
determinations. See id. We, therefore, decline Mother’s invitation to do so.
Mother next complains that the trial court abused its discretion when it
based Father’s support obligation on his post-retirement income rather than
on the income that he earned prior to his retirement, which, Mother
contends, was voluntary. To support her contention, Mother cites Smedley
v. Lowman, 2 A.3d 1226 (Pa.Super. 2010), for the blanket proposition that
when a parent has a support obligation and takes an early retirement, that
parent voluntarily reduces his or her income, and therefore, the support
obligation cannot be decreased. (See Mother’s brief at 27-28.)
The facts of Smedley, however, differ from the facts of this case. In
Smedley, the father voluntarily retired at age 52, despite being in good
health and being capable of continued employment. Smedley, 2 A.3d at
1227-1229. Here, the record reflects that Father was employed as a truck
driver and retired when he was approximately 55 years old.1 (Notes of
testimony, 8/31/15 at 6.) Father testified that he retired because he needed
1
The record reflects that Father was born on December 26, 1953, and
retired in 2008.
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hip replacements and could no longer perform his job duties. (Id.)
Therefore, unlike Smedley, Father’s testimony, found credible by the
fact-finder, established that Father was not in good health and not capable
of continued employment when he retired. Consequently, Mother’s reliance
on Smedley for the blanket proposition that an early retirement equates to
a voluntary retirement is misguided.
We also note that Father’s current support obligation of $572 per
month was set in 2005 and was based on Father’s pre-retirement income.
(Interim order of court, filed 3/23/05.) Therefore, Mother has no grounds to
complain about the basis for the support obligation. Consequently, this
claim lacks merit.
Mother next complains that the trial court abused its discretion when it
assigned her an earning capacity of $35,000 “without taking all factors into
consideration.” (Mother’s brief at 30.) The record reflects that Mother was
terminated from her job as a secretary at a local union in January 2005
because she was charged with and convicted of embezzlement. Following
her termination from employment, Father filed a modification petition.
Thereafter, the parties stipulated to an imputed income for Mother of $2,400
per month. (Hearing officer’s findings and recommendations, filed 3/23/05;
see also interim order of court, filed 3/23/05.) The record further reflects
that although Mother filed a petition for modification on February 1, 2010,
the trial court found no substantial changes to warrant a modification, and
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Mother did not seek a de novo hearing. (Order denying petition to modify,
2/26/10; notice of right to request a hearing, 2/26/10.)
Mother now complains that she should not be assigned an annual
earning capacity of $35,000. In support, she cites Novinger v. Smith, 880
A.2d 1255 (Pa.Super. 2005), for the proposition that when a parent loses
employment due to an “infraction,” that parent should not have to pay
forever for losing that employment. (Mother’s brief at 31.) Although Mother
correctly sets forth that part of the Novinger opinion, Mother ignores the
part that distinguishes losing a job due to an “infraction” such as tardiness
from losing a job due to criminal behavior such as her own felonious
embezzlement activities.
Our courts have held that those seeking reductions in support
obligations due to criminal behavior that results in incarceration will not be
rewarded for that behavior, and upon release, must start paying their
arrears. See Novinger, 880 A.2d at 1257; see also Yerkes v. Yerkes,
824 A.2d 1169 (Pa. 2003) (finding that incarceration is not a change in
circumstances that can be used to modify a support order). The policy
behind this rule is that imprisonment and its resulting reduction in income
are foreseeable consequences of criminal activity akin to voluntary
unemployment. Yerkes, 824 at 306. Taking this to its logical extension as
it applies here, it was foreseeable to Mother that her embezzlement could
lead to job loss and a criminal conviction that could severely impede her
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ability to secure future employment. As such, Mother’s reduction in income
was in her control and she cannot now be rewarded for her criminal activity
by using it as a change in circumstances to reduce her imputed earning
capacity. Therefore, this claim lacks merit.
Mother next complains that the trial court abused its discretion when it
failed to consider Pa.R.Civ.P. 1910.16-6 in denying her request for an
upward deviation in Father’s support obligation because of the Child’s
extracurricular expenses. Pennsylvania Rules of Civil Procedure 1910.1
through 1910.50 govern support actions. In deciding whether to deviate
from the amount of support determined by the guidelines, the trier-of-fact
must consider, among other things, the Child’s unusual needs and unusual
fixed obligations. Pa.R.Civ.P. 1910.16-5. Here, Mother concedes that
Rule 1910.16-5 “may not apply.” (Mother’s brief at 34.) Consequently,
Mother concedes that the expenses that she set forth are not “unusual
needs” and/or “unusual fixed obligations.”
Instead, Mother argues that Rule 1910.16-6 applies. Under that rule,
childcare expenses, health insurance premiums, unreimbursed medical
expenses, private school tuition, and mortgage payments may warrant an
adjustment to the basic support obligation. The expenses that Mother sets
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forth,2 however, bear no relationship to the enumerated expenses set forth
in Rule 1910.16-6. Therefore, Mother’s claim that the trial court abused its
discretion for failing to consider an inapplicable rule to determine that an
upward adjustment was not warranted cannot, and does not, constitute an
abuse of discretion. Consequently, this claim lacks merit.
Mother finally complains that the trial court abused its discretion by
failing to consider the best interests of the Child. Mother argues: “By
reviewing the case history and questioning [Father] during the de novo
hearing and argument, [Mother] has clearly and convincingly shown the
inconsistencies in [Father’s] testimony, yet the lower court has chosen to
ignore them. [Mother] beseeches that this Honorable Court not do the
same.” (Mother’s brief at 36.) Once again, Mother invites us to reweigh the
evidence and reassess the fact-finder’s credibility determinations. Once
again, we decline her invitation to do so because that is not our role as an
appellate court. See Baehr, 889 A.2d at 1243.
Order affirmed.
2
In addition to household expenses, Mother sets forth certain of the Child’s
expenses for the “previous 12 months,” including test fees, purchase of a
vehicle, traveling expenses related to the Child’s participation in Boy Scouts,
lacrosse expenses, cell phone, car insurance, vet bills for the Child’s dog,
and school lunches. (Notes of testimony, 8/31/15 at Exhibits 2 and 3.)
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2016
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