Barnes, S. v. Barnes, D.

J-S19044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID BARNES, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
STEPHANIE BARNES, :
:
Appellee : No. 2463 EDA 2014
Appeal from the Order entered on July 17, 2014
in the Court of Common Pleas of Montgomery County,
Civil Division, No. 2009-35782 Paces #549111275
BEFORE: STABILE, JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 29, 2015
David Barnes (“Father”) appeals from the Order1 setting forth his
monthly child support. We affirm.
In its Memorandum accompanying the support Order, the trial court
set forth the relevant procedural history as follows:
[]Stephanie Barnes [“Mother”] and [Father] were married on
May 25, 1996[,] in Philadelphia, Pa. They are the parents of two
minor children: [L.B.] … (D.O.B. 1/18/99) and [E.B.] … (D.O.B.
4/11/06) [collectively “the Children”], both of whom reside
primarily with Mother. The parties separated some time in 2009,
and on November 4, 2009, Mother filed a Complaint in divorce,
which included a claim for child support of the [C]hildren.
On February 4, 2010, an interim Per Curiam Order was entered,
wherein Father agreed to pay one-thousand dollars ($1,000) per
month, and contribute fifty percent (50%) of the tuition for The
1
We note that while the Order was dated July 15, 2014, the Order was
docketed and notice was sent to the parties on July 17, 2014. See Pa.R.C.P.
236(b); Pa.R.A.P. 108(b).
J-S19044-15
Baldwin School (“Baldwin”)[2] for [L.B.] for the 2009-2010 school
year only, and 50% of child care expenses for [E.B.]
Accordingly, Father did not contribute to [L.B.’s] Baldwin tuition
for the 2010-2011, 2011-2012, and 2012-2013 school years.
On June 22, 2012, the parties entered into a property settlement
agreement to equitably divide their marital assets. Said
agreement specifically states that the “agreement does not
affect in any way child support or child custody. Each party is
free to file any petition in the future to modify those issues.” On
July 9, 2012, the parties were divorced from the bonds of
matrimony. Thereafter[,] on October 15, 2012, Mother filed a
[P]etition to modify the February 4, 2010 Support Order with the
Domestic Relations Office. Mother alleged several changes of
circumstances, including: 1) an increase in Father’s income; 2) a
decrease in Mother’s income; and 3) [E.B.] was enrolled in
[Baldwin].
As a result of Mother’s [P]etition to modify, on March 8, 2013[,]
the Master issued a recommendation in support wherein Father
was to pay a total of $1,619.62 per month, allocated as
[follows]: $912.80 per month for child support of two children,
$181.95 per month for medical insurance provided by Mother,
and $524.87 per month for private school tuition. On March 22,
2013, Father filed … Exceptions …. Specifically, Father
challenge[d] the Master’s determination regarding his net
income, and the reasonableness of private school tuition.
Memorandum and Order, 7/17/14, at 1-2 (footnote added).
The trial court set forth what occurred next in its Pa.R.A.P. 1925(a)
Opinion as follows:
On February 21, 2014, t[he trial c]ourt presided over the de
novo hearing and heard testimony from the parties about their
respective earnings, and perspectives on the [C]hildren
attending Baldwin. On that same date, t[he trial c]ourt issued
an Order directing the parties to submit briefs on [the]
admissibility of non-appearing expert report[s] by March 14,
2014, and to submit post[-]hearings briefs by March 21, 2014.
On March 21, 2014, Father’s counsel filed an Emergency Petition
2
Baldwin is an all-girls independent private school located in Bryn Mawr,
Pennsylvania.
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J-S19044-15
for Leave to Introduce [Father’s] 2013 filed [i]ncome [t]ax
[r]eturn. Thereafter, on March 28, 2014, t[he trial c]ourt[,]
upon consideration of Father’s Emergency Petition[,] issued an
Order scheduling an additional hearing on May 14, 2014.
On May 14, 2014, counsel for the parties conferenced before the
[trial c]ourt to review Father’s 2013 income tax return. Counsel
assessed various deductions, and discussed which deductions
were appropriate or permissible for purposes of calculating
Father’s income available for support. After [the] conference,
counsel stipulated as follows: 1) Father’s gross income available
for support in 2013 is $63,941; 2) Father[’s] tax deductions for
2013 amount to $11,439; and accordingly, 3) Father’s net
income for support for 2013 amounts to $52,502, which breaks
down to $4,375.17 per month.[3]
At the conclusion of the hearing on May 14, 2014, t[he trial
c]ourt issued an Order directing the parties to file post-trial
briefs, including proposed support calculations, within two (2)
weeks of the date of this Order. After thorough review of all
testimony, exhibits, and briefs submitted in the matter, th[e trial
c]ourt on July [17], 2014[,] issued a Memorandum and Order,
which calculated the parties’ net monthly income, analyzed
whether private school tuition was a reasonable need pursuant
to Pa.R.C.P. 1910.16-6(d), and ultimately directed Father to pay
a monthly support obligation of $1,639.65, allocated as $897.4
per month as basic child support for his two minor children, plus
$183.67 per month for medical insurance provided by Mother,
plus $558.52 per month for private school tuition. [The trial
court stated that the support Order was effective January 1,
2013.]
On August 18, 2014, Father filed a Notice of Appeal … [and a
3
Father is a self-employed exhibit/set designer, who works for the movie
and zoo business. Father is also a sculptor. Mother is a brand manager for
Ralph Lauren and has a net monthly income of $5,163.48.
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court-ordered Pa.R.A.P. 1925(b) Concise Statement.4]
Trial Court Opinion, 10/24/14, at 3-4 (footnotes omitted; footnotes added).
On appeal, Father raises the following questions for our review:
Did the trial court err in calculating the parties’ respective
incomes because:
(1) it include[d] supposed [Individual Retirement Account
(“IRA”)] funds as part of [Father’s] on-going income[;]
(2) [the] trial court erroneously excluded [Mother’s] personal
perquisites[;]
(3) [the] trial court erred by including over $13,000
unemployment compensation as on-going income[;]
(4) [the] trial court deviation from the guidelines to compel
[Father] to pay for private school was an abuse of
discretion[?]
Did the trial court err by failing to require:
(5) that [M]other carry her burden of proof[,] and prove by
competent evidence that public school is deficient, thereby
justifying private school education[;]
(6) that [M]other prove that private school is a reasonable
need that falls within the parties’ standard of living prior to
separation[?]
Brief for Appellant at 4.
4
Father’s Notice of Appeal as to the July 17, 2014 support Order is timely.
The thirtieth day after the entry of the Order was Saturday August 16, 2014.
See Pa.R.A.P. 903(a) (stating that a notice of appeal must be filed within
thirty days of the entry of the order from which the appeal is taken). Father
had until Monday, August 18, 2014 to file a notice of appeal. See 1
Pa.C.S.A. § 1908 (providing that when last day of any period of time
referred to in any statute falls on Saturday, Sunday, or legal holiday, such
day shall be omitted from computation). Thus, Father’s August 18, 2014
Notice of Appeal is timely.
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Our standard of review for child support orders is as follows:
When evaluating a support order, this 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) (citation omitted);
see also Brotzman–Smith v. Smith, 650 A.2d 471, 474 (Pa. Super. 1994)
(stating that an assessment of the credibility of the witness is within the
province of the trial court and the court is free to weigh the evidence
presented).
In his brief, Father has addressed his claims regarding the calculation
of the parties’ incomes together. Father contends that the trial court erred
in calculating the parties’ incomes. Brief for Appellant at 7. Father argues
that the trial court erroneously included IRA funds amounting to $3,547 that
he withdrew prematurely, and unemployment compensation, in determining
his net income. Id. at 7, 9. Father asserts that these payments were a
one-time disbursement, and thus inflated his net income for 2013. Id. at 9-
10, 11. Father claims that the amount of child support is unreasonable, as it
forces him to live like a pauper. Id. at 10.
“Generally, the amount of support to be awarded is based upon the
parties’ monthly net income.” Pa.R.C.P. 1910.16-2. “The assessment of the
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full measure of a parent’s income for the purposes of child support requires
courts … to determine ability to pay from all financial resources.” D.H. v.
R.H., 900 A.2d 922, 930 (Pa. Super. 2006) (citation and internal quotation
marks omitted). “When determining income available for child support, the
court must consider all forms of income.” MacKinley v. Messerschmidt,
814 A.2d 680, 681 (Pa. Super. 2002). Pennsylvania Rule of Civil Procedure
1910.16-2, which governs support and income calculations, states the
following in relevant part:
(a) Monthly Gross Income. 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.A. § 4302,[5] and includes income from any source. The
statute lists many types of income including, but not limited to:
5
The Domestic Relations Code defines “income” as follows:
“Income.” Includes compensation for services, including, but
not limited to, wages, salaries, bonuses, 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;
workers’ compensation; unemployment compensation; other
entitlements to money or lump sum awards, without regard to
source, including lottery winnings; income tax refunds;
insurance compensation or settlements; awards or verdicts; and
any form of payment due to and collectible by an individual
regardless of source.
23 Pa.C.S.A. § 4302.
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(1) wages, salaries, bonuses, fees and commissions;
***
(4) pensions and all forms of retirement;
***
(6) Social Security disability benefits, Social Security retirement
benefits, temporary and permanent disability benefits, workers’
compensation and unemployment compensation;
***
(c) Monthly Net Income.
(1) Unless otherwise provided in these rules, the court shall
deduct only the following items from monthly gross income to
arrive at net income:
(A) federal, state, and local income taxes;
(B) unemployment compensation taxes and Local Services Taxes
(LST);
(C) F.I.C.A. payments (Social Security, Medicare and Self-
Employment taxes) and non-voluntary retirement payments;
***
Pa.R.C.P. 1910.16-2 (footnote added).
With regard to Father’s retirement funds, the trial court properly
calculated Father’s 2013 income to include income from the premature
withdrawal of his IRA and self-employment pension. See Trial Court
Opinion, 10/24/14, at 7-8; see also Pa.R.C.P. 1910.16-2(a); Portugal v.
Portugal, 798 A.2d 246, 252 (Pa. Super. 2002) (stating that section 4302
of the Domestic Relations Code “broadly states that ‘all forms of retirement’
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and ‘pensions’ constitute income.”). Here, Father introduced his 2013
income tax return into the record and stipulated that his net yearly income
was $52,502, making his monthly income $4,375.15. See N.T., 5/14/14, at
7; see also Trial Court Opinion, 10/24/14, at 7. Father’s net yearly income
included his early withdrawal of $1,430 from his Vanguard IRA, and $2,117
from his self-employment pension. See N.T., 5/14/14, at 6; see also Trial
Court Opinion, 10/24/14, at 8. After entering the stipulation, Father’s
counsel argued that the early withdrawal of his retirement accounts should
not be included in the income calculation going forward because he had
“depleted” his accounts. N.T., 5/14/14, at 10. However, beyond counsel’s
statement that Father had depleted his accounts, “there was no
documentary or testimonial evidence adduced at trial demonstrating the
amount of money remaining in Father’s pension or Vanguard IRA.” Trial
Court Opinion, 10/24/14, at 8. Indeed, Father does not cite to any evidence
on appeal establishing that his retirement accounts were depleted, or that
the money from the accounts was a one-time gain and could not be utilized
going forward. Thus, based upon the evidence of record, we conclude that
the trial court properly included as income the disbursements from Father’s
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retirement accounts in determining his net monthly income.6
With regard to the unemployment compensation, the trial court
properly calculated Father’s 2013 income to include the unemployment
compensation he received. See Trial Court Opinion, 10/24/14, at 8-9; see
also 23 Pa.C.S.A. § 4302; Pa.R.C.P. 1910.16-2(a). As above, Father
stipulated that he received unemployment compensation totaling $13,113 in
2013. N.T., 5/14/14, at 6. While Father claims that his 2013
unemployment compensation could not be considered recurring income and
should be excluded from his income calculation, he specifically testified that
he received unemployment compensation for January and February of 2014.
N.T., 2/21/14, at 40, 82-83. Moreover, Father specifically stated that
unemployment compensation is a part of his yearly income because of the
nature of his work. Id. at 10-11. Based upon this record, we conclude that
the trial court properly included Father’s unemployment compensation in
calculating his net monthly income.
Father further contends that the trial court’s calculation of Mother’s
income was in error, as the trial court refused to include Mother’s receipt of
6
Father is free to file a petition to modify the support Order at any time to
demonstrate a diminished net income. See Plunkard v. McConnell, 962
A.2d 1227, 1229 (Pa. Super. 2008) (stating that “[a]n award of support,
once in effect, may be modified via petition at any time, provided that the
petitioning party demonstrates a material and substantial change in their
circumstances warranting a modification.”); see also Pa.R.C.P. 1910.19.
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perquisites, in the amount of $100, from her employer towards her cell
phone costs. Brief for Appellant at 13.7
In determining a parent’s financial obligation to support his children,
“a court must make a thorough appraisal of the [parent’s] actual earnings
and perquisites ....” Mascaro v. Mascaro, 803 A.2d 1186, 1194 (Pa.
2002). Personal perquisites paid by an employer, such as automobiles,
phones, and fuel expenses, must be included as income. Id.; see also
Heisey v. Heisey, 633 A.2d 211, 212 (Pa. Super. 1993) (stating that
“personal perquisites, such as entertainment and personal automobile
expenses, paid by a party’s business must be included in income for
purposes of calculating child support.”).
The trial court stated that while personal perquisites must be included
in calculating Mother’s income, it did not include any perquisites in
determining Mother’s income because there was insufficient evidence to
calculate the amount of perquisites received by Mother. See Trial Court
Opinion, 10/24/14, at 9-10. The trial court points out that during the
February 21, 2014 hearing, Mother testified that her employer pays for her
cell phone, but did not know the amount paid for the cell phone as the bill
went directly to her employer. See id. at 10 (citing N.T., 2/21/14, at 186-
87). However, Mother explicitly stated that her employer provided her with
$100 a month to expend on a cell phone and/or internet in 2013. N.T.,
7
Father only sets forth a single sentence supporting his claim, and fails to
cite to the record or relevant case law. See Pa.R.A.P. 2119(a).
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2/21/14, at 188-89; see also Trial Court Opinion, 10/24/14, at 10
(acknowledging that “testimony adduced demonstrates that previously, in
2013, Mother’s employer would provide her with $100 per month to use for
internet and/or cell phone, but said practice has ceased.”). While the trial
court utilized the parties’ net income from 2013 to determine their
respective child support obligations, from this record, it is unclear whether
Mother used the cell phone for personal use, for business purposes or a
combination of both. See, e.g., Murphy v. McDermott, 979 A.2d 373,
379-80 (Pa. Super. 2009) (calculating father’s personal use of vehicle
provided by his employer in determining how much income is derived from
this perquisite); DeMasi v. DeMasi, 530 A.2d 871, 879 (Pa. Super. 1987)
(stating that trial court did not err in adding income from husband’s
perquisites equal to the perquisites that did not directly benefit the
corporation). Because Father has not demonstrated that Mother’s
perquisites were for personal use, we conclude that the trial court did not
abuse its discretion in calculating Mother’s income. See Marter v. Ross,
439 A.2d 1181, 1182 (Pa. Super. 1982) (stating that “[a] support order
cannot rest upon the speculation of the trial judge as to the extent of a
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parent’s income when there is no evidence of that income on record.”).8
In his fifth and sixth claims, Father contends that the trial court erred
in ruling that private school is a reasonable need for the Children. Brief for
Appellant at 16, 17-18. Father argues that private school was inconsistent
with the parties’ standard of living prior to separation. Id. at 16, 19-21.
Father points out that the parties lived with numerous unpaid bills, utility
shutoff notices, and tax liens while they were married. Id. at 20-21.
Father further argues that Mother failed to meet her burden of proof to
demonstrate that public school could not provide adequate educational
programs for the Children. Id. at 16-19. Father argues that paying for
private school was beyond his means. Id. at 21; see also id. at 15-16
(wherein Father claims that the disparity in his earnings from Mother
demonstrates that the trial court should not have deviated from the support
guidelines in mandating that he pay for private schooling for the Children).
In its Memorandum and Order, the trial court set forth the relevant law
and determined that the evidence demonstrated that the Children’s
8
Father also argues that the trial court failed to include Mother’s deferred
income, which is not subject to taxes, in the child support calculations. See
Brief for Appellant at 14 (stating that Mother contributes $4,282 into her
401(k) annually and has deferred income of $18,666.45, all of which should
be available for child support). Father further asserts that Mother has other
assets in her bank account and has unexplained deductions related to
medical expenses that should be considered income. Id. at 13-14.
However, Father failed to raise these claims in his Rule 1925(b) Concise
Statement; thus, the claims are waived on appeal. See Pa.R.A.P.
1925(b)(4)(vii); Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 (Pa.
Super. 2007).
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attendance of private school was reasonable and that private schooling was
consistent with the parents’ standard of living prior to separation. See
Memorandum and Order, 7/17/14, at 4-9. Upon our review of the evidence,
we agree with the trial court’s reasoning, and conclude that it did not abuse
its discretion in directing Father to pay a share of the private school tuition.
See id.; see also Murphy, 979 A.2d at 378 (concluding that the trial court
did not abuse its discretion in ordering father to pay a portion of child’s
private school tuition because child, who had attended only a private school,
clearly benefited from private school, such a payment was consistent with
the child’s and the parents’ station in life, and father had previously
contributed to the tuition payment). Thus, we conclude Father’s claims are
without merit.
Order affirmed.
Stabile, J., joins the memorandum.
Jenkins, J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2015
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IN THE COURT OF COMMON PLEAS OF MONTGOMF.RYCOUNTY. : . I
F~i:~~y;~ 1111 ~~M11: Dll 1 1
2009-35782-0109 7i17/2014 9:45 AM # 9880279
'I Order
Rcpt#Z2166424 [Fee:$0.00
STEPHANIE BARNES Mark! Levv - MontCo Prothonotarv
: v. .,
Plaintiff . i
NO. 2o2009 Pa. Super. 151, 979 A.2d 373, 377 (Pa. Super. Ct. 2009) lciting Gibbons v.
Kugle, 2006 Pa. Super. 264, 908 A.2d 916, 921 (Pa. Super. Ct. 2006). See Jzso Francis v.
Francis, 3 5 8 Pa. Super. 3 91, 517 A.2d 997, 1000 (1986) ("[T]he applicable test is whether the
cost of private schooling is a reasonable need of the child and a reasonable! expectation and
expense of the parents.").
As to the first prong, the benefit of private school, this Court finds {hat the evidence and
testimony adduced demonstrates that both Emma and Lily Barnes will benefit from continued
enrollment at The Baldwin School. Mother testified that the parties chose The Baldwin School
for Lily, inter alia, because of the fact that it was an all girl school, the diversity, and the
academic rigor and the resulting challenge that it would present to Lily. Aslfi or. Emma, Mother
learned that she was equally as academically talented as Lily, and Mother decided she could not
"do for one child without doing for the other."
Since the children's enrollment in Baldwin, testimony reveals that the! children are
performing very well in an academically challenging environment. Lily is close to a straight "A"
student, the students and faculty love her, and she is enrolled in several extracurricular activities,
! !
including: student council, head of Service League, yearbook committee, diversity committee,
soccer, and dance. Mother also testified about the cultural experiences from which Lily has
5
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benefitted as a result of her attendance at Baldwin. Lily is exposed to children from various
backgrounds and ethnicities, and was given an opportunity to travel to Italy and Canada, and will
;
travel to France in her upcoming 1 o" grade year.
Emma's report card also demonstrates that she is performing well academically at
'
Baldwin. She is still very young and early in her academic career, but testimony reveals that
Emma should expect to benefit from the same cultural exposure and academic challenge that
Lily has experienced. In addition, Emma has the extra benefit of attending school with her older
sister who consistently checks on her and supervises her after school while waiting for their
Mother to arrive.
Father does not deny that the children are thriving at Baldwin; rather father's argues that
his children would thrive at any school they attend so Baldwin does not necessarily "benefit"
them. During cross-examination of Mother, Father's counsel questioned Mother's investigation
of the local public schools and the consultation of educational experts concerning private versus
public schools. This Court does not find it necessary to compare Baldwin to the local public
schools to determine if the children benefit from their enrollment at Baldwin.\ Even assuming
arguendo that this Court believed such a comparison was necessary, this Co~ finds that Father
did not present any concrete evidence that the local public school would be just as beneficial for
the children. Father merely reflected on his and his family's personal experience in public
school, and expressed that he "kind of wishes [Lily] had done public school.': See Murphy, 979
A.2d 373, at fn. 6 (Noting that evidence of "benefit" was scant as Mother sirriply stated the child
would benefit, and Father in a vague fashion stated that public school would be just as good.
Court stated "[i]f Father wanted to relieve himself of the burden of continuing to pay for private
school, he should have presented additional concrete evidence to support his position.")
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With regard to the second factor, whether private schooling is consistent with the family's
i
standard of living/station in life prior to separation, this Court finds, for the reasons set forth
below, that The Baldwin School tuition considering the sizeable grants of firiancial aid afforded
to the children each year is consistent with the family's station in life prior tq separation.
In determining standard of living, one must look to available income and the lifestyle that
the income would support. Gibbons, 908 A.2d 916, at 921 citing Karp v. Karp, 455 Pa. Super.
21, 27, 686 A.2d 1235, 1328 (1996).
Father testified that he reluctantly agreed to send Lily to Baldwin for first grade because
he was scared that it was going to be unaffordable. Additionally, Father states the parties could
never afford Baldwin tuition and the cost of private school was driving them apart. However, the
;
record also demonstrates that Father voluntarily contributed to Lily's Baldwin tuition every year
from 1st grade until the parties separated in 2009 when Lily was in the 5th grade. Around the time
of separation, when Father voluntarily agreed to contribute 50% toward Lily's 2009-2010 school
year and 50% of Emma's child care expenses (private school daycare), the combined tuition of
both children was $25,060 ($13,260-Lily (Baldwin); $10,800-Emma(daycare)), requiring Father
to contribute $12,530 for both children in 2009. At the time of the Master's hearing, during the
2012-2013 school year, Emma was enrolled in Baldwin and the combined tuition for both
children, which included sizeable financial aid grants for both children, was $6,298.44 for both
children.
While this Court is not ignorant to the expense of a Baldwin School education and the
financial strain it may have caused for the parties during the marriage, the evidence adduced
demonstrates that the parties laudably decided to allocate a substantial portion of their household
7
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\..
income toward a private school education for their daughters. With the assistance of financial
aid grants, the parties were able to afford their children a private school education from The
Baldwin School, which had a fair market value of $54,570.00 in the 2013-2dl4 school year, for
$14,570. This court finds that it is consistent with the parties' station in life Before separation for
i
the parties to continue to take advantage of financial aid awards and afford their children a
private school education.
With regard to Father's argument that Emma was unilaterally enrolled in The Baldwin
School, the Court notes that Father argues both sides of the same point. On the one hand Father
argues that the Master erred by considering the parties' joint decision as a factor, and on the
other hand Father argues that this Court should consider the fact that he did riot join in the
decision to enroll Emma in Baldwin. Additionally, Father testified that both children have only
known private school. The Court believes it is consistent to require Father to [do for one child,
what he voluntarily did for the other. See Pellish v. Gerhart, 701 A.2d 594, 5()7 (Pa. Super. Ct.
i
!i
1997).
Lastly, with regard to Father's argument that the February 4, 2010 Interim Agreement
i
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represents a contract, which relieves him of any responsibility to contribute to the private school
tuition of his children, the Court finds that Father's arguments lack merit for ~wo reasons. First,
the February 4, 2010 Interim support agreement does not create a contract relieving Father of any
'
responsibility to contribute to private school tuition beyond Lily's 2009-20101 school year. The
agreement did nothing more than set forth Father's agreed contribution for said year and make
clear that Father's voluntary contributions do not obligate him to pay tuition ib future years.
Basically, the agreement instructs the Court to determine Father's contribution based on
applicable support law, rather than on the basis of his agreement. Secondly, ahd more
8
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importantly, "A mother cannot, by contract, bargain away the right of her minor children to
adequate support from the father, regardless of the validity of the agreementlas between the
parents themselves." Kraisinger v. Kraisinger, 2007 Pa. Super. 197, 928 A.2d 333, 345 (Pa.
Super. Ct. 2007).
Because the evidence demonstrates that Lily and Emma are benefitting from their
enrollment in The Baldwin School, and the tuition, considering the sizeable financial aid grants
that both children receive and presumably will continue to receive, is consistent with the parties'
standard of living/station in life prior to separation, this Court finds that the children's Baldwin
>
School tuition constitutes a reasonable expense under Pa.R.C.P. 1910.16-6(d). The Court does
not believe that Mother seeks contribution toward the children's education tb punish Father or to
be confiscatory; rather she needs assistance to continue to provide their children with the
education to which they have become accustomed. The Court acknowledges that both parties
may have to continue to make sacrifices so that both children are able to enjoy the benefit of a
Baldwin School education, but that is a choice that both parties made well before this Court
became involved. "Child support is a primary obligation of the parent and the parent himself may
have to forego providing for some of his needs and luxuries in order to provide for his child."
See Frey v. Frey, 777 DR 2003, 2006 WL 5166597 (Pa. Com. Pl. July 13, 2006) citing Colonna
v. Colonna, 581 Pa. 1, 7, 855 a.2d 648, 651 (2004).
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• AND NOW this · , J;;, of JJ VJ , 2014, upon clnsideration of
Defendant, David Barnes', Exceptions to the Recommendation of Support that was entered as a
Per Curiam Order on March 8, 2013, and after a hearing de novo with both ~arties present; it is
hereby ORDERED and DECREED that the following support order shall qe effective:
SUPPORT ORDER
Plaintiff-Mother, Stephanie Barnes, and Defendant-Father, David Barnes, are the parents
of two minor children: Lily Barnes (D.O.B. 1/18/99) and Emma Barnes (D.q>.B. 4/11/06).
Based upon Pennsylvania's support guidelines, with Mother's net monthly income of
$5,163.48 and Father's net monthly income of$4,375.l 7, Father shall pay as follows:
$897.46 per month for two (2) children plus
$183.67 per month for medical ins. provided by Mother plus
$558.52 per month for private school tuition
$1,639.65 per month TOTAL
Pursuant to Pennsylvania Rule of Civil Procedure 1910-16.6( c ), the monthly' support obligation
requires the custodial parent, to provide the first $250 in unreimbursed medical expenses for
each child. Unreimbursed medical expenses that exceed $250 annually per child shall be
allocated between the parties as indicated below. The party seeking allocation of unreimbursed
medical expenses must provide documentation of expenses to the other parti: no later than March
i
31st of the year following the calendar year in which the final medical bill tol be allocated was
received.
Unreimbursed medical expenses shall be allocated: 46% to Fath~r and 54% to
Mother.
Father shall submit receipts demonstrating expenses incurred by Fath~r related to the
children, including: cell phone payments, private camps, braces, and payments related to
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extracurricular activities, to Domestic Relations for calculation of the amount of credit owed to
Father figuring in his respective percentage contribution to such expenses. Eor each expense
incurred by Father moving forward, Father shall submit receipts to Mother within thirty (30)
days that the expense is incurred for Mother to reimburse Father based on her respective percent
of contribution (54%).
Mother shall submit receipts regarding unreimbursed medical expenses to Domestic
Relations to calculate the amount of credit, if any, owed to Mother.
This Order is effective January 1, 2013.
Copies mailed 7/15/14 to:
By First Class Mail:
Diane S. Tosta, Esquire
Steven M. Coren, Esquire
By Interoffice Mail:
Court Administration - Family Division
D ·. stic R~l~ons
!/;ldA
1 Secretary
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