O'Leary, S. v. O'Leary, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SUSAN O'LEARY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AARON O'LEARY :
:
Appellant : No. 804 WDA 2019
Appeal from the Order Entered May 2, 2019
In the Court of Common Pleas of Washington County Domestic Relations
at No(s): No. 361 DR 2008
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED: NOVEMBER 22, 2021
Appellant, Aaron O’Leary, appeals from an order entered on May 2,
2019, which denied his exceptions to an order modifying child support. We
affirm in part, vacate in part, and remand for additional proceedings.
The trial court briefly summarized the facts and procedural history of
this case as follows:
The parties were married on October 29, 2005 and separated on
December 23, 2017. On May 18, 2018, [Susan K. O’Leary
(“Mother”) filed a complaint for support. In the complaint,
[Mother] requested [] support and medical coverage on behalf of
herself and/or the [parties’ two minor] children. Following support
proceedings, a final order requiring Appellant to pay [] support
was entered on June 28, 2018. After only three months, on
September 27, 2018, [Mother] was granted leave to file for
modification of the original support order. [A] hearing officer
issued her findings on January 16, 2019. [Appellant] filed
exceptions to the hearing officer’s findings on February 1, 2019,
argument on exceptions occurred on April 15, 2019, and [the trial]
court entered an order denying exceptions on May 2, 2019.
Appellant filed his notice of appeal on May 29, 2019[. O]n August
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19, 2019, [the trial] court ordered Appellant to file [a] concise
statement [of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b)] by September 13, 2019. On September 4,
2019, Appellant filed his concise statement. [The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on October 29, 2019.1]
Trial Court Opinion, 10/29/2019, at 2-3 (superfluous capitalization omitted).
On appeal, Appellant presents the following issues for our review:
1. Did Appellant waive his issues on appeal by failing to raise his
issues in his exceptions or in a post-trial motion?
2. Did the trial court commit error in failing to apply the
appropriate support code guidelines in calculating the parties’
support obligations? Specifically, did the trial court err in
calculating the parties’ adjusted net monthly incomes, the
____________________________________________
1 On February 6, 2020, this Court, upon notice that Mother initiated
bankruptcy proceedings, stayed this appeal in accordance with the automatic
stay provision of the United States Bankruptcy Code, 11 U.S.C. § 362. The
parties were directed to provide written updates to this Court every six months
as to the status of the bankruptcy proceedings so that this Court could either
proceed with this matter or determine whether the appeal was rendered moot
by the conclusion of the bankruptcy proceedings. Because the last response
regarding the status of the bankruptcy proceedings was received on May 26,
2020, by per curiam order entered on July 19, 2021, we directed the parties
to notify this Court of the status of the case or, if appropriate, praecipe for the
discontinuance of this appeal. Mother did not respond. Appellant responded
on July 23, 2021. He maintains that “there has been no further activity in the
Bankruptcy Court[,] the matter [was] closed pending the completion of the
Chapter 13 Plan[, and Mother’s b]ankruptcy filing has no impact on the
[s]upport [a]ction presently before this Court[.]” Appellant’s Response to Per
Curiam Order, 7/23/2021, at *1 (unpaginated). Upon further review, we
determine that pursuant to 11 U.S.C. § 362, filing for bankruptcy “does not
operate as a stay” for “the establishment or modification of an order for
domestic support obligations[.]” 11 U.S.C. § 362(b)(2)(A)(ii). As such, we
entered an order lifting the automatic stay and shall proceed to examine the
issues presented on appeal. We remind counsel that “[i]t is not the obligation
of an appellate court to formulate appellant's arguments for him.” Wirth v.
Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (internal citation, original
brackets, and ellipsis omitted). However, in order to move this case forward,
we entered the order lifting the bankruptcy stay in this matter sua sponte.
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parties’ respective shares of the basic support obligation, or did
the trial court commit error in utilizing the guidelines intended
for parties operating under pre-2019 tax code?
3. Did the trial court commit error in failing to assess a child
support obligation or otherwise provide for the parties’ minor
child, A.J.O.?
4. Did the trial court commit error in assessing Mother’s earnings
capacity?
Appellant’s Brief at 5 (numbers supplied).
Initially, we note that the trial court determined that all of Appellant’s
appellate issues were waived for lack of specificity in both Appellant’s
exceptions to the hearing officer’s recommendations and in his concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
As such, in his first issue presented, Appellant claims the trial court erred in
finding waiver. More specifically, Appellant avers that he presented three
exceptions to the hearing officer’s findings and those same three issues were
raised in his concise statement. Id. at 16.
In addition, Appellant further challenges the trial court’s finding that he
did not properly preserve his second appellate issue presented above. That
issue involves Appellant’s claim that the hearing officer erred in utilizing the
2018 support guidelines instead of the 2019 support guidelines under
Pa.R.C.P. 1910.16-4. Id. at 19-29. Rule 1910.16-4 provides:
(a) The trier-of-fact shall use either the subdivision (1) or
subdivision (2) formula to calculate the obligor's share of basic
child support, either from the schedule in Pa.R.C.P. No. 1910.16-3
or the formula in Pa.R.C.P. No. 1910.16-3.1(a), as well as spousal
support and alimony pendente lite obligations. In high-income
cases, the trier-of-fact shall use either the subdivision (1)(Part B)
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or subdivision (2)(Part IV) formula, as appropriate, as a
preliminary analysis in the calculation of spousal support or
alimony pendente lite obligations.
(1) The formula in Parts A through E is for an order entered
on or after January 1, 2019, or for a modification of an
order entered before January 1, 2019 that includes spousal
support or alimony pendente lite in which the amendments
to the Internal Revenue Code made by Section 11051 of the
Tax Cuts and Jobs Act of 2017 (Pub. L. No. 115-97) expressly
apply.
Note: Section 11051 of the Tax Cuts and Jobs Act of 2017
(Pub. L. No. 115-97) amended the Internal Revenue Code
by repealing the alimony deduction -- the amount of spousal
support, alimony pendente lite, and alimony paid or
received -- from the payor's gross income and the alimony
inclusion into the payee's gross income.
See subdivision (2) for a modification of an order entered
before January 1, 2019 that includes spousal support or
alimony pendente lite in which the amendments to the
Internal Revenue Code made by Tax Cuts and Jobs Act of
2017 (Pub. L. No. 115-97) do not apply to the modification.
***
(2) The formula in Parts I through IV is for a modification of an
order entered before January 1, 2019 that includes spousal
support or alimony pendente lite.
Note: See subdivision (1) for an order entered on or after
January 1, 2019, or for a modification of an order entered
before January 1, 2019 that includes spousal support or
alimony pendente lite in which the amendments to the
Internal Revenue Code made by Tax Cuts and Jobs Act of
2017 (Pub. L. No. 115-97) expressly apply to the
modification.
Pa.R.C.P. 1910.16-4 (emphasis added).
In sum, Appellant claims:
The hearing officer made no finding and made no indication that
she utilized the 2018 [or the 2019] guidelines. When the
numerical findings and awards utilized by the hearing officer could
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not be independently calculated by either [A]ppellant or [Mother,
A]ppellant filed exceptions and brought this fundamental mistake
to the court: that the decision made by the hearing officer was
not rendered within the guidelines as required by the Pennsylvania
Rules of Civil Procedure.
***
It was not until after [] Appellant filed the instant appeal that the
trial court ordered the parties to attend a[n] in camera conference
where the trial court indicated to the parties that the 2018
guidelines were utilized.
***
The guidelines were significantly altered between 2018 and 2019
due to sweeping changes made to the basic calculation of
obligations because the 2017 Tax Cuts and Jobs Act fundamentally
altered the tax implications of spousal support awards. The new
support guidelines take into consideration [an obligor’s] inability
to deduct spousal support[, as well as termination] of [an obligee’s
duty to] pay taxes on child support.
The matter was before the hearing officer, and the court, in the
calendar year of 2019, and involved only existing tax implications,
not tax implications as existed prior to the Tax Cuts and Jobs Act
of 2017. The spousal support component of the order was not put
into place until after the tax law was established. There was no
lawful basis to utilize the 2018 support code.
Appellant’s Brief at 11-13.
Here, as explained in the procedural history above, there is no dispute
that an original order of child support was entered on June 28, 2018 and that
Mother was granted leave to file a petition for modification of child support in
September 2018. After a hearing on January 10, 2019, the hearing officer
issued findings of fact, together with a recommended order for support and
arrears, on January 16, 2019. Upon review of the hearing officer’s findings,
it is clear that there was no determination of whether she utilized the 2018 or
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2019 guidelines pursuant to Pa.R.C.P. 1910.16-4. As such, we agree with
Appellant that he was unable to specifically challenge the hearing officer’s
application of Rule 1910.16-4 in his exceptions to the recommendations for
support.
Moreover, at oral argument on exceptions before the trial court,
Appellant specifically challenged the hearing officer’s application of Rule
1910.16-4. See N.T., 4/15/2019, at 9 (“[T]here was a mistake in calculating
the parties’ presumptive support obligations.”); see also id. at 10 (“[T]he
new formula that’s been established, Pa.R.C.P. 1019.16-4 [] is a 2019 formula
that sets out child support after alimony […w]as not correctly followed.”).
Appellant argued that, as a result of the hearing officer’s errors, his net
monthly income and adjusted gross income were calculated incorrectly and
that the hearing officer compounded the error by failing to include one of the
parties’ children in the calculation. Id. at 10-14.
While Appellant did not raise a challenge based upon Rule 1019.16-4
until the hearing on his exceptions, this Court has held:
In order to preserve an issue for appellate review, a party must
make a timely and specific objection at the appropriate stage of
the proceedings before the trial court. Failure to timely object to
a basic and fundamental error will result in waiver of that issue.
On appeal the Superior Court will not consider a claim which was
not called to the trial court's attention at a time when any error
committed could have been corrected. In this jurisdiction [], one
must object to errors, improprieties or irregularities at the
earliest possible stage of the adjudicatory process to afford
the jurist hearing the case the first occasion to remedy the
wrong and possibly avoid an unnecessary appeal to
complain of the matter.
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Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa. Super. 2000) (internal citations
omitted; emphasis added). We believe Appellant’s claim was properly raised
before the trial court at the hearing on exceptions and that the trial court had
an adequate opportunity to remedy the error at an earlier stage. As such, the
issue was properly preserved.
Thereafter, in his concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), Appellant raised, inter alia, the following issues
for the trial court’s consideration:
The trial court erred in failing to apply the Pennsylvania Rules of
Civil Procedure in adjusting the parties’ [m]onthly [n]et [i]ncomes
based on the existing alimony pendente lite award, resulting in an
incorrect calculation of the parties’ respective shares of the basic
support obligation;
The trial court erred and/or abused its discretion in applying the
Pennsylvania Rules of Civil Procedure as they existed in calendar
year 2018 to an [o]rder of support entered in 2019, subject to
2019 federal taxation regulations, to parties that did not benefit
from 2018 federal taxation regulations.
Rule 1925(b) Concise Statement, 9/4/2019, at *1-2 (unpaginated). The trial
court determined that these issues, although presented in Appellant’s Rule
1925(b) concise statement, were not raised specifically in exceptions and
“should be deemed waived.”2 Trial Court Opinion, 10/29/2019, at 4. We
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2 More specifically, the trial court stated:
[It was] unsure what Pennsylvania Rules of Civil Procedure
Appellant [was] referring to as he refers only to the Pennsylvania
Rules of Civil Procedure and not the specific section. [The trial
(Footnote Continued Next Page)
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disagree. Upon review, Appellant objected to the hearing officer’s support
calculations (including the 2018/2019 tax implications) at the hearing on
exceptions. Thus, the objections raised on appeal were placed squarely before
the trial court and Appellant’s subsequent Rule 1925(b) statement was
sufficiently precise to permit the trial court to infer that Appellant intended to
challenge the hearing officer’s application of Rule 1910.16-4. Accordingly,
Appellant’s second issue presented on appeal was properly presented and
preserved for our review.
We adhere to the following standards:
In Pennsylvania, an appellate court's standard of review in cases
involving support matters is whether the trial court abused its
discretion. An abuse of discretion exists when the judgment of
the trial court is manifestly unreasonable or is the result of
prejudice, bias or ill-will. While it is not an appellate court's duty
to create the record or assess credibility, we must nevertheless
examine the existing record to ascertain whether sufficient facts
are present to support the trial court's order. If sufficient
____________________________________________
c]ourt [could] only surmise Appellant [was] referring to Rule
1910.16-4(a)(2) and the use of the 2018 calculation rather than
the 2019 calculation. The mere fact that Appellant did not produce
a [c]oncise [s]tatement that identifies the rulings or errors being
challenged with sufficient detail to identify the pertinent issue for
[the trial c]ourt, along with the fact that this [was] the first time
Appellant [] rais[ed] this as an issue, should constitute waiver of
these issues.
Trial Court Opinion, 10/29/2019, at 7 (footnote omitted). We disagree with
the trial court’s opinion that Appellant’s Rule 1925(b) statement was
insufficiently specific. Appellant specifically referenced Rule 1019.16-4 at the
hearing on exceptions. And, while Appellant did not cite to Rule 1019.16-4 in
his Rule 1925(b) statement, he did reference differences in the 2018 and 2019
federal taxation regulations as encompassed in Rule 1019.16-4. Moreover,
despite finding waiver, the trial court examined Appellant’s claim on its merits.
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evidence exists in the record to substantiate the trial court's
action, and the trial court has properly applied accurate case law
to the relevant facts, then we must affirm.
Hibbitts v. Hibbitts, 749 A.2d 975, 976–977 (Pa. Super. 2000) (citations
omitted); see also Kimock v. Jones, 47 A.3d 850, 854 (Pa. Super. 2012)
(“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.”).
In construing the Rules of Civil Procedure, as the ultimate
promulgator of said Rules, it is the intent of our Supreme Court
that controls. In performing our task, we also look to the tools of
statutory construction. In analyzing the intent of our Supreme
Court, “the best indication of said intent is the plain language of a
rule. In pursuing that end, we are mindful that when the words
of a rule are clear and free from all ambiguity, the letter of it is
not to be disregarded under the pretext of pursuing its spirit. In
addition, words and phrases shall be construed according to rules
of grammar and according to their common and approved usage
while any words or phrases that have acquired a peculiar and
appropriate meaning must be construed according to that
meaning. Also, we presume that our Supreme Court does not
intend a result that is absurd, impossible of execution or
unreasonable.
Horwath v. DiGrazio, 142 A.3d 877, 880 (Pa. Super. 2016) (internal
citations, quotations, and brackets omitted).
As set forth above, Rule 1910.16-4 provides, in pertinent part, that “the
trier-of-fact shall use …[t]he formula in Parts A through E [] for a modification
of an order entered before January 1, 2019 that includes spousal support or
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alimony pendente lite in which the amendments to the Internal Revenue Code
made by Section 11051 of the Tax Cuts and Jobs Act of 2017 (Pub. L. No.
115-97) expressly apply.” Pa.R.C.P. 1910.16-49(a). As stated previously,
the original order of child support in this matter was entered on June 28, 2018,
which is clearly before January 1, 2019. There is no dispute that the
subsequent order modified the original order of support. Likewise, there is
no dispute that the modification of child support also included spousal support
or alimony pendente lite. The Rule provides that the trier-of-fact “shall” use
a specific formula when amendments to the Internal Revenue Code “expressly
apply.” Our Supreme Court has stated the use of the word “shall” is, by
definition, mandatory, unless the context in which the term appears creates
extrinsic ambiguity as to its meaning. See Chanceford Aviation Props.,
LLP v. Chanceford Township Bd. of Supervisors, 923 A.2d 1099, 1104
(Pa. 2007); see also Pa.R.C.P. 103(a) (“Words and phrases shall be construed
according to rules of grammar and according to their common and approved
usage[.]”). Here, under Rule 1910.16-4, the use of the word shall does not
create an extrinsic ambiguity, therefore, the hearing officer was required to
determine whether amendments to the Internal Revenue Code expressly
applied to Appellant and, if so, to then use a specific formula to determine
support. The hearing officer, however, did not do so.
Furthermore, despite finding waiver, the trial court found there was no
merit to Appellant’s claim, opining:
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While it is true that the [modification] hearing did not occur until
2019, the modification [petition] was filed in 2018 and there was
no request, from either party, for the 2019 guidelines to be
applied. Since this modification [petition] was filed in 2018,
absent an agreement or indication to the contrary, the 2018
guidelines were the default guidelines. [The trial c]ourt and the
[h]earing [o]fficer would not, without a request, apply the 2019
guidelines to a modification [of support petition] that was filed in
2018 based upon an initial support order that was entered in
2018. If there was a disagreement about application of the
guidelines in this case, the parties could have presented argument
on the date of the hearing. Furthermore, this is not a unique
situation. The IRS allows taxpayers to indicate whether they are
subject to 2018 guidelines or 2019 guidelines. In conclusion, [the
trial court] should be affirmed as it did not abuse its discretion by
denying Appellant’s [e]xceptions when he failed to raise the
guideline year as an issue at the time of the hearing, failed to
[take] except[ion] to the guideline issue specifically, and is raising
this issue for the first time on appeal.
Trial Court Opinion, 10/29/2019, at 8-9.
We conclude that the trial court erred as a matter of law in interpreting
Rule 1910.16-4. As set forth above, the Rule required the factfinder to
determine whether tax amendments expressly applied to Appellant and to
then use an established formula to compute support payments. The Rule does
not specify that the 2018 guidelines are the default unless otherwise
requested by the parties. Based upon the plain, mandatory language of Rule
1910.16-4, we conclude that the hearing officer erred in making her
calculations and, in turn, the trial court erred by denying Appellant’s
exceptions. Accordingly, we are constrained to vacate the modified support
order, remand for additional proceedings with a new calculation of support
using the proper guidelines.
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Furthermore, in an inter-related argument, Appellant asserts that as a
result of using the wrong guidelines, the hearing officer erred in calculating
the parties’ adjusted net monthly incomes. Appellant’s Brief at 25-27. He
also contends that “the support hearing officer, and the trial court, failed to
consider the [parties’] minor child, A.J.O., whom [Appellant] supports and
Mother owes a duty of support.” Id. at 27. These calculations are intertwined
with the overall calculation for support. As Appellant properly raised these
issues in his exceptions to the hearing officer’s findings and Rule 1925(b)
statement, upon remand, the fact-finder should also consider these additional
factors.
Finally, Appellant claims “the trial court erred in determining Mother’s
earning capacity.” Appellant’s Brief at 29. While the trial court found this
issue waived for lack of specificity in both Appellant’s exceptions and Rule
1925(b) statement, we disagree with that assessment. In his exceptions,
Appellant asserted “the hearing officer erred in assessing a lower earnings
capacity to [Mother] than what was supported by the evidence.” Exceptions,
2/1/2019, at ¶ 3. At the modification hearing and the hearing on Appellant’s
exceptions, Appellant has always maintained that “[p]rior to her brain
aneurysm [in 2013], Mother made approximately $260,000.00 per year in
salary from her employment as a sales representative for educational
products.” Id. at 30. Mother temporarily held a few, hourly-wage jobs in
2017, but claims she has problems involving her memory. Id. at 31-32.
Appellant has always maintained that because Mother did not present medical
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evidence to substantiate a claim that she could not work, the hearing officer
erred by imputing Mother an earning capacity of $10.00 per hour based upon
her last attempts at employment. Id. at 33.
Again, as set forth above, we will not interfere with the broad discretion
afforded the trial court absent an abuse of discretion or insufficient evidence
to sustain the support order. Kimock, 47 A.3d at 854. “A reviewing court
does not weigh [earning capacity] evidence or determine credibility as these
are functions of the trial court.” Doherty v. Doherty, 859 A.2d 811, 812 (Pa.
Super. 2004) (citation omitted). “A person's earning capacity is defined not
as an amount which the person could theoretically earn, but as that amount
which the person could realistically earn under the circumstances, considering
his or her age, health, mental and physical condition and training.” Gephart
v. Gephart, 764 A.2d 613, 615 (Pa. Super 2000); see also Pa.R.C.P.
1910.16-2(d)(4) (“Age, education, training, health, work experience, earnings
history and child care responsibilities are factors which shall be considered in
determining earning capacity.”). Past earnings alone are not sufficient to
support a determination of earning capacity without corroborating evidence
that the party still has the capacity to earn that amount. See D.H. v. R.H.,
900 A.2d 922 (Pa. Super. 2006) (holding trial court erred in determining
earning capacity based solely upon party's most recent tax return).
Here, Appellant essentially asks this Court to reweigh the evidence
presented at the modification hearing and to reassess Mother’s credibility
regarding employment. We simply cannot. Doherty, 859 A.2d at 812.
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Moreover, the record supports the hearing officer’s determination that, at the
time of the modification hearing, Mother had an earning capacity of $10.00
per hour due to her ongoing medical problems as the result of a brain
aneurism in 2013. As such, based upon our standard of review, we affirm the
trial court’s decision with regard to Mother’s earning capacity.
Accordingly, we vacate trial court’s decision with regard to the
computation of Appellant’s tax consequences under Pa.R.C.P. 1910.16-4,
Appellant’s adjusted gross income, and support obligations for the parties’
minor child, A.J.O. We affirm the trial court’s decision regarding Mother’s
earning capacity.
Order affirmed in part and vacated in part. Case remanded for
additional proceedings consistent with this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2021
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