Spone, K. v. Spone, R.

J-A02030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KJETIL SPONE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RAFFAELLA SPONE
Appellee No. 1143 EDA 2013
Appeal from the Order Entered March 20, 2013
In the Court of Common Pleas of Montgomery County
Domestic Relations at No(s): 2007-31635 Pacses No. 792109797
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J. FILED OCTOBER 01, 2014
K.S. (“Father”) appeals from the support order and supplemental
support order, both entered March 20, 2013, which awarded child support to
R.S. (“Mother”). Father raises a plethora of issues concerning his obligation
with respect to summer camp costs, parochial school tuition, medical costs,
and child care costs for the parties’ two minor children. After careful review,
we affirm on all but one issue as indicated below; in relation to the claim
involving Father’s health insurance contribution, we vacate and remand.
The underlying facts of the case are fully set forth in the court’s three-
part support order dated March 20, 2013, its findings and conclusions, and
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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accompanying supplemental order also dated March 20, 2013, and its
opinion filed June 12, 2013. Therefore, we will provide only a brief
summary: Father and Mother were married on January 16, 1999. The
parties have two minor children:1 (1) H.S., born in January of 2000, now
age 14; and (2) A.S., born in April of 2004, now age 10 (collectively, “the
Children”). On December 20, 2007, Father filed a complaint in divorce.
Prior to the parties’ divorce, Father moved to Anchorage, Alaska with his
girlfriend in April of 2008. On November 16, 2009, the divorce decree was
entered.
The trial court set forth the extensive procedural history as follows:
On May 14, 2010, the parties appeared with their
respective counsel at a Support hearing before the Honorable
Emanuel A. Bertin. The parties stipulated to the total support for
the calendar year 2008 and the basic support order for the
calendar year 2009, but had oral argument regarding Father’s
contribution to child care, private school and/or summer camp
for 2009. On June 25, 2010, there was additional testimony and
argument with respect to child care, private school and/or
summer camp for 2009 and the amount of support for the year
2010. On July 14, 2010, Judge Bertin issued a Supplemental
Support Memorandum and Order, addressing child care, private
school and summer camp for 2009 and the amount of support
from January 1, 2010 – Forward. Judge Bertin ordered Father to
pay the following for 2009: (1) 60% of $7,500.00 for child care,
totaling $4,500.00; (2) 60% of $6,525.00 for private school
tuition, totaling $3,915.00; and (3) 60% of $1,600.00 for
summer camp, totaling $960.00. From January 1, 2010 –
Forward, Father’s net monthly income was $1,325.24 based on
his Alaskan unemployment compensation. From January 1,
____________________________________________
1
As minor children are involved in this case, we identify them by their
initials.
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2010 – Forward, Father was ordered to pay $440.00 per month
for two children plus contribute $73.25 per month to Mother for
health insurance, which totaled $513.25 per month for child
support. As a result of Father receiving unemployment
compensation, Father was not required to pay for child care,
private school and/or summer camp.
On July 27, 2010, Father filed a Motion for Reconsideration
of the Supplemental Support Memorandum and Order of July 14,
2010. In response, Judge Bertin granted several of Father’s
requests and reduced Father’s total private school contribution of
$2,628.00 for 2009. On September 23, 2010, Father appealed
[the trial court]’s August 24, 2010 Order, addressing Father’s
Motion for Reconsideration. On August 5, 2011, the Superior
Court dismissed Father’s Appeal.[2]
On October 12, 2011, Mother and Father (via telephone)
appeared before Master Arthur Klein, Esquire (“Master Klein”) at
a Master’s Conference on Mother’s Petition to Modify Support
filed on or about June 21, 2011. On November 22, 2011, Master
Klein recommended the following: (1) Mother’s net income after
legal deductions was $2,483.00 per month; and (2) Father’s net
earning capacity considering, background, education and
experience was $5,600.00 per month based on the April 15th,
2011 Contempt hearing before the Honorable Carolyn T.
Carluccio and the parties’ stipulation dated February 10, 2009,
discussing Father’s earnings. Master Klein recommended Father
to pay $1,229.00 per month for two children, plus $218.00 per
month for medical insurance provided by Mother, and a monthly
arrears of $145.00 which totaled $1592.00 per month.
On December 5, 2011, Father filed Support Exceptions to
Master Klein’s Support recommendations, resulting in a hearing
before [the trial court] on April 12, 2012. At the hearing, Mother
appeared with counsel and Father appeared pro se. At the
conclusion of the hearing, [the trial court] issued an Order,
denying Father’s Support Exceptions.
____________________________________________
2
Spone v. Spone, 29 A.3d 842 [2726 EDA 2010] (Pa. Super. 2011)
(unpublished memorandum) (appeal dismissed because Father did not
request that certain transcripts be included in the certified record and
therefore, the panel could not conduct a meaningful review on appeal).
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Prior to the hearing on April 12, 2012, Mother filed a
Petition for Sanctions on April 9, 2012. On April 20, 2012,
Mother filed a Petition for Contempt, and Mother filed a Petition
for Child Care, Parochial School and Summer Camp on April 27,
2012.
On May 4, 2012, Father, through newly hired counsel, filed
a Motion for Reconsideration with Supplemental Brief, requesting
[the trial court] reconsider its Order dated April 12, 2012. On
May 14, 2012, Father appealed [the trial court]’s Order dated
April 12, 2012. On the same day, [the court] vacated its Order
of April 12, 2012 and granted Father’s Motion for
Reconsideration. On July 12, 2012, the Superior Court
dismissed Father’s appeal.
On June 22, 2012, [the trial court] issued an Order
regarding Father’s Motion for Reconsideration. Pursuant to the
Order of June 22, 2012, [the court] found that Mother’s net
income after legal deductions was $2,637.00 per month and
Father’s net income after legal deductions was $3,672.00 per
month. [The court] ordered Father to pay $888.00 per month
for two children plus $101.00 per month for medical insurance
provided by Mother, totaling $989.00 per month. Additionally,
Father was ordered to pay $99.00 per month on arrears and
58% of all unreimbursed medical expenses. On July 5, 2012,
Father filed a Motion for Reconsideration of [the court]’s June
22, 2012, Support Order, which [the court] granted by Order
dated July 13, 2012.
On July 16, 2012, [the trial court] held a hearing on
Mother’s Petition for Child Care, Parochial School and Summer
Camp due to the timely nature and gravity of impact upon the
children. At the hearing, both parties were represented by
counsel. A hearing never occurred because counsel reached an
agreement on behalf of the parties. The Order dated July 16,
2012, granted in part and continued in part Mother’s Petition for
Child Care, Parochial School and Summer Camp. Based on the
agreement, the Order directed Father to pay $1630.30 for the
children’s summer camp in accordance with his 60%
contribution.
On August 15, 2012, Father appealed [the trial court]’s
Order of July 16, 2012, which was later dismissed by Superior
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Court on October 23, 2012. On August 28, 2012, Father filed a
Motion for Reconsideration of [the court]’s Order of July 16,
2012, which [the court] granted by Order dated August 30,
2012. On October 11, 2012, Mother filed an Emergency Motion
for an Evidentiary Hearing on Summer Camp Costs, Parochial
School, Medical Costs and Child Care Costs. On December 3,
2012, Mother filed another Emergency Motion for Father to
comply with the [c]ourt’s Order of November 22, 2011 and
contribute towards medical insurance.
On January 9, 2013, both parties appeared before [the
trial court] with their respective counsel for a one day hearing.
On the same day, Father filed a Reply to Mother’s Emergency
Motion for an Evidentiary Hearing on Summer Camp Costs,
Parochial School, Medical Costs and Child Care costs. [The trial
court] issued a Supplemental Support Order dated March 20,
2013 and a three-part Support Order dated March 20, 2013.
Thereafter, no post-trial motions were filed. On April 18, 2013,
Father filed a timely Notice of Appeal to the Pennsylvania
Superior Court from [the court]’s Supplemental Support Order
dated March 20, 2013. On April 22, 2013, in accordance with
Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure,
[the court] ordered Father to file a Concise Statement of Matters
Complained of on Appeal within twenty-one days from the date
of the Order. Said statement was received on May 13, 2013.
Trial Court Opinion, 6/12/2013, at 1-5.
Father now raises the following 12 issues on appeal:
A.
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produce adequate documentary evidence to substantiate her
testimony?
E.
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An abuse of discretion is not merely an error of judgment; if, in
reaching a conclusion, the court overrides or misapplies the law,
or the judgment exercised is shown by the record to be either
manifestly unreasonable or the product of partiality, prejudice,
bias or ill will, discretion has been abused. In addition, we note
that the duty to support one’s child is absolute, and the purpose
of child support is to promote the child’s best interests.
Kimock v. Jones, 47 A.3d 850, 853-854 (Pa. Super. 2012), quoting
Brickus v. Dent, 5 A.3d 1281, 1284 (Pa. Super. 2010).
Based on our disposition, we begin with Father’s seventh claim, in
which he asserts the court erred in its determination of the portion of the
health insurance contribution attributed to Father because the calculation
was based on the total amount paid rather than the amount paid for the
Children only. Father’s Brief at 22.
Pennsylvania Rule of Civil Procedure 1910.16-6(b) provides for the
payment of health insurance coverage, in relevant part, as follows:
(1) A party’s payment of a premium to provide health insurance
coverage on behalf of the other party and/or the children shall
be allocated between the parties in proportion to their net
incomes, including the portion of the premium attributable to the
party who is paying it, as long as a statutory duty of support is
owed to the party who is paying the premium. If there is no
statutory duty of support owed to the party who is paying the
premium, the portion attributable to that person must be
deducted from the premium as set forth in subdivision (2) below.
Premiums paid by a party to whom no duty of support is owed to
cover himself or herself only and that are not necessary to cover
the other party or a child as part of a support order shall not be
apportioned between the parties. If health insurance coverage
for a child who is the subject of the support proceeding is being
provided and paid for by a third party resident of either party’s
household, the cost shall be allocated between the parties in
proportion to their net incomes. If the obligor is paying the
premium, then the obligee’s share is deducted from the obligor’s
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basic support obligation. If the obligee is paying the premium,
then the obligor’s share is added to his or her basic support
obligation. Employer-paid premiums are not subject to
allocation.
(2) When the health insurance covers a party to whom no
statutory duty of support is owed, even if that person is paying
the premium as set forth in subdivision (1) above, or other
persons who are not parties to the support action or children
who are not the subjects of the support action, the portion of the
premium attributable to them must be excluded from allocation.
In the event that evidence as to this portion is not submitted by
either party, it shall be calculated as follows. First, determine
the cost per person by dividing the total cost of the premium by
the number of persons covered under the policy. Second,
multiply the cost per person by the number of persons who are
not owed a statutory duty of support, or are not parties to, or
the subject of the support action. The resulting amount is
excluded from allocation.
Pa.R.C.P. 1910.16-6(b).
Here, the trial court concedes that it erred in determining the portion
of health insurance contribution attributed to Father:
Case law provides that a defendant should not be held
responsible for that portion of a health insurance which is
attributable to an ex-spouse. Mayer v. Gayer, 835 A.2d 1281,
1285 (Pa. 2003). However, it is submitted that this principal
applies only to those circumstances where insurance coverage
would be available for children only and where the premium
attributable to the ex-spouse can thereby be segregated from
that attributable to the children.
In this present case, it was difficult to determine the actual
cost of the medical coverage premium attributable to the
children only. Pa.R.C.P. 1910.16-6(b)(2) mandates that when
the actual cost of the premium attributable to the children is not
known or cannot be verified, it shall be calculated as follows:
“First, determine the cost per person by dividing the total cost of
the premium by the [] number of persons covered [under] the
policy. Second, multiply the cost per person by the number of
persons who are not [owed a statutory duty of support, or are
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not] parties to, or the subject of the support action. The
resulting amount is excluded from allocation.” Id. This Court
concedes that it erred by not applying Rule 1910.16(b)(2) to
determine the health insurance premium attributed to the
children only. As such, this Court respectfully requests to be
allowed to recalculate the health insurance premium in
accordance with Rule 1910.16(b).
Trial Court Opinion, 6/12/2013, at 18-19.
Upon review, we agree with the trial court’s assessment and conclude
the court erred and abused its discretion in failing to properly allocate
Father’s medical insurance premium payments in accordance with Pa.R.C.P.
1910.16-6(b)(2), resulting in a manifestly unjust result. Accordingly, we
vacate that portion of the trial court’s order setting Father’s basic monthly
support obligation and remand for recalculation to include an appropriate
allocation of Father’s medical insurance payments in accordance with
Pa.R.C.P. 1910.16-6(b). The trial court is free to hold further hearings if it
deems them necessary to address this issue.
Turning to Father’s first argument, he asserts the court erred by
denying that Father properly objected to the Children’s attendance at
parochial school based on the high quality of the public schools in the vicinity
of their residence. Father’s Brief at 10. Specifically, Father proclaims there
was no evidence presented of a comparison between the public and
parochial schools because that was not the source of contention at the
January 9, 2013, hearing. Id. Rather, Father states the issue was the
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parties’ joint ability to pay for the children’s education and he claims he
raised this issue during closing arguments. Id.Under Pennsylvania Rule of Civil Procedure 1910.16-6(d), the trial
court may direct the parent-obligor to contribute to private school tuition if it
is a “reasonable need:”
Private School Tuition. Summer Camp. Other Needs. The
support schedule does not take into consideration expenditures
for private school tuition or other needs of a child which are not
specifically addressed by the guidelines. If the court determines
that one or more such needs are reasonable, the expense
thereof shall be allocated between the parties in proportion to
their net incomes. The obligor’s share may be added to his or
her basic support obligation.
Pa.R.C.P. 1910.16-6(d).
Thus, the Support Guidelines allow the court to include private
school tuition in the support amount if the court determines that
the need for private school is a reasonable one. In determining
whether a need is reasonable, this Court has stated:
A private school education may be a reasonable need for a
child if it is demonstrated that the child will benefit from
such and if private schooling is consistent with the family’s
standard of living and station in life before the separation.
If these factors are proved, a court may order a parent to
provide financial support for the private schooling of a
minor child.
Murphy v. McDermott, 979 A.2d 373, 377 (Pa. Super. 2009), quoting
Pa.R.C.P. 1910.16-6(d). Accordingly, we “are to uphold the trial court’s
decision to order private school contributions so long as the court did not
abuse its discretion in determining that: (1) the child will ‘benefit,’ and (2)
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private schooling is consistent with the family’s prior standard of living and
station in life.” Id.Here, the court found the following:
Father asserts that [the court] erred in requiring Father to
contribute to parochial school education for the parties’ two
children as the public schools where the children reside are of
high quality. The law is well-established in Pennsylvania that 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. Hong v. Pelagatti, 765
A.2d 1117, 1123 (Pa. Super. Ct. 2000). [“]An appellate court
will not ordinarily reverse the court below for not doing what it
was not asked to do, but will treat matter not objected to in the
court below as waived.” Whistler Sportswear, Inc. v. Rullo,
433 A.2d 40, 45 (Pa. Super. Ct. 1981), citing Logan v. Cherrie,
282 A.2d 236 (Pa. 1971). During the parties’ closing argument,
Father argued that Mother resides in a very good school district
where the children’s attendance would alleviate some of the
financial contributions. However, Father never explicitly raised
an objection to the children attending parochial school based on
the exemplary public schools near the children’s residence.
There was no evidence presented that the public schools located
within the children’s residence are of high quality and the
children would benefit from public education. Likewise, there
was no submitted evidence showing the children are not
benefiting from a parochial school education. Accordingly, [the
court] cannot consider something it was not asked to do.
Therefore, this issue is waived.
Trial Court Opinion, 6/12/2013, at 7-8.
We agree with the court’s conclusion. Father never specifically
objected to the Children attending parochial school based on the public
schools in the area nor did he present evidence that the Children would
benefit more from the public schools. Rather, during closing argument,
Father’s counsel alleged that Mother could not make Father pay $5,000.00
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because the children lived with her and she was making unilateral decisions.
N.T., 1/9/2013, at 129. Moreover, counsel stated:
[Father]’s not a bank. And, at some point, there has to be,
looking at a situation and making a decision, that some of these
things can’t be afforded. And because we want things doesn’t
mean that we have to have them. She has a very, very, very
good school district. That would take away some of the financial
obligations that she’s speaking about, take her stress away. And
she’s clearly stressed by her financial situation. It’s got to come
out in the household. I don’t know how that’s in the best
interests of the children – and, also, not ask [Father] to be a
bank.
Id. Counsel’s statements during closing argument merely amounted to a
contention that the Children’s attendance at a public school would alleviate
some of the financial contributions for Mother. Father never objected that
the private schooling was not reasonable based on the fact that it did not
benefit the Children or was not consistent with the family’s prior standard of
living and station in life.
Furthermore, to the extent Father argues the court erred because the
actual issue was the parties’ joint ability to pay for the children’s education,
we find this argument unavailing. In reaching the conclusion that private
school was reasonable, the trial court considered the incomes of both
parties, as well as other relevant factors, including that both Children had
attended the parochial school since they were in kindergarten, stating:
This Court finds from the totality of the evidence [the] cost of
the school to be reasonable, that the children will benefit from
the same and the schooling is consistent with the family’s
standard of living and station in life prior to the separation of the
parties. Moreover, this Court finds that parochial school
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expenses are reasonable based on Father’s own testimony of his
gross annual income of $55,000.00 per year.
Supplemental Order, 3/20/2013, at 14-15. Additionally, in its Rule 1925(a)
opinion, the court expounded upon its finding:
The total tuition amount for both children to attend Mary
Mother of the Redeemer Catholic Parochial School (“MMR”) is
$6,470.00 per year, which includes Mother’s parishioner rate of
$780.00 and a tuition fee of $5,690.00. The Court concluded
that the tuition amount for both children to attend MMR is
reasonable. The record establishes that children have known
only private school. Prior to the parties’ separation, [H.S.]
attended Gwynedd Friends preschool and enrolled at MMR for
kindergarten. At the time of the hearing, [H.S.] was 12 years
old, in seventh grade and attended MMR for the past eight years.
[A.S.] naturally followed in the footsteps of her big sister. Prior
to the parties’ separation, [A.S.] attended Gwynedd Friends, a
private school, starting at age 2. Like [H.S.], [A.S.] enrolled at
MMR for kindergarten. At the time of the hearing [A.S.] was 8
years old, in third grade and attended [] MMR for the past four
years. The entire record shows that the children have and are
benefiting from their private school education, commenced by
agreement1 and encouragement of both parents. As a result,
Father was court-ordered to contribute to the children’s parochial
school education in 2009. In 2010, Father was relinquished from
his obligation towards private school tuition when Father’s
income was based on his unemployment compensation.
1
The previous Court determined that Father actually
searched out and investigated MMR and initiated steps to
select the school for [H.S.], to which [M]other agreed in
the ultimate mutual decision of the parents. Both parents
loved the small classrooms, the teachers, the warm and
friendly environment and thought it so perfect for [H.S.]’s
development that they looked at no other schools. See
Trial Court Opinion, 10/5/10, at 6.
On January 9, 2012, Father resumed full-time
employment, earning an annual income of $55,000.00 per year.
Although Father’s annual income is $30,000.00 less than what
he made in 2008 at Draeger Medical, this Court determined that
Father still has a stringent obligation to support his children even
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if it causes him some hardship or requires sacrifice. Moreover,
Father’s resumption of his prior obligation to pay parochial
school tuition serves the best interest of the children.
Trial Court Opinion, 6/12/2013, at 11 (some citations omitted). We agree
with the court’s sound reasoning and emphasize the following:
The principal goal in child support matters is to serve the best
interests of the child through provision of reasonable expenses.
The duty of child support, as every other duty encompassed in
the role of parenthood, is the equal responsibility of both mother
and father. As this duty is absolute, it must be discharged by
the parents even if it causes them some hardship.
Kimock, 47 A.3d at 855, quoting Yerkes v. Yerkes, 824 A.2d 1169, 1171
(Pa. 2003) (internal citations and quotation marks omitted). Here, Father
failed to present any evidence at the January 9, 2013, hearing that the
Children’s parochial school obligation was unreasonable or that Father even
suffers some kind of hardship. Accordingly, Father’s first argument fails.
In Father’s second argument, he claims the court’s examination of the
family’s station in life and standard of living in comparison to that under
which the court initially ordered payment for parochial school was in error.
He asserts the court misconstrued his issue, stating:
The Trial Court states that Father raises an argument that the
Court’s deviation from the Child Support Guidelines was
inappropriate. While the Trial Court understood this to mean
that Father believes there was a deviation, as that term of art is
applied pursuant to Pa.R.C.P. 1910.16-5, Father meant that the
inclusion of the parochial school expense pursuant to Pa.R.C.P.
1910.16-6(d) was an inappropriate adjustment, not that the
Court deviated from the Child Support Guidelines in the sense
explicated in Pa.R.C.P. 1910.16-5.
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Father’s Brief at 12 (citations omitted). Moreover, Father states, “[T]he
current financial reality of Mother and Father must be a part of the analysis.”
Id. at 13. He argues that because the Children “are not immune from the
stresses of their parents, one must wonder if the best interests of the
[C]hildren are served by continuing them in parochial school.” Id. at 15.
Further, he states “Mother has never demonstrated the benefit of educating
the [C]hildren in parochial school and if any such benefit would not be
offered in a public school.” Id.
Contrary to Father’s argument, the “burden of demonstrating a
material and substantial change rests with the moving party, and the
determination of whether such change has occurred in the circumstances of
the moving party rests within the trial court’s discretion.” Summers v.
Summers, 35 A.3d 786, 789 (Pa. Super. 2012). Here, Father is the moving
party. Other than mere allegations, Father has not presented any evidence,
as indicated above, that the Children’s parochial school was unreasonable
and furthermore, he has failed to meet his burden of demonstrating that a
material and substantial change has occurred, in which he can no longer
meet his obligation regarding the Children’s schooling. We rely on the
court’s analysis as set forth in the prior issue and need not address this
issue further. Accordingly, Father’s second argument fails.
In his third issue, Father argues the court erred in finding that the
child care expenses were reasonable. While he admits that both parties will
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incur child care expenses, “he believes that it is in the best interests of the
children for Mother to explore different employment opportunities so that the
significant cost of child care may be reduced or eliminated.” Father’s Brief at
16. Specifically, he suggests that Mother “[sh]ould instead maintain
employment during the day and be home with the children during the hours
they sleep” so that the parties can reduce the amount of child care
payments. Id. at 17.
The allocation of childcare expenses is governed by Pennsylvania Rule
of Civil Procedure 1910.16-6(a), which provides, in pertinent part:
Reasonable child care expenses paid by either parent, if
necessary to maintain employment or appropriate education in
pursuit of income, shall be allocated between the parties in
proportion to their net incomes and added to his and her basic
support obligation.
Pa.R.C.P. 1910.16-6(a).
We initially note that Father, in his Rule 1925(b) concise statement,
did not include the issue that Mother should maintain daytime employment
in order to reduce the childcare expenses.3 Consequently, the trial court did
not address that claim in its Rule 1925(a) opinion. Therefore, Father has
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3
Rather, in his concise statement, Father states: “The Trial court erred in
determining that childcare expenses of $1,560.00 a month (for children ages
9 and 13) incurred by the mother were reasonable when said childcare
expenses represented more than half of the gross monthly salary of mother
(gross biweekly salary of mother determined to be $1,430.86).” Statement
of Matters Complained of Pursuant to Rule of Appellate Procedure 1925(b),
5/13/2013, at unnumbered 2.
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waived this issue on appeal. See Pa.R.A.P. 1925(b)(3)(iv) (dictating “that
any issue not properly included in the Statement … shall be deemed
waived”). Nevertheless, relative to the reasonableness of the childcare
expenses in general, we agree with the trial court’s rationale.
In its Rule 1925(a) opinion, the court found the following:
Although the cost of childcare in this case is costly there is
nothing in the record to indicate that it is not reasonable under
the circumstances. Here, Mother has physical custody of the
children year-long because Father relocated to Alaska. As a
single parent, solely providing for the children, it is crucial that
Mother maintains her employment. Childcare expenses are
incurred as a result of Mother working overnight shifts on
Sunday, Tuesday, and Thursday from 5:00 pm until 7:00 am.
Because Father lives in Alaska, Father cannot assume childcare
responsibilities. Th[e] Court noted that maternal grandmother
cannot adequately assist Mother with childcare because she is 86
years old and her heath is unfortunately declining.
The record shows that Mother has used the same
overnight childcare sitter since 2008 and has continued to pay
her $10.00 per hour for her services, which Father contributed to
as court-ordered from June 2008 until January 2010. Th[e]
court noted that Mother researched hiring a nanny to provide
childcare instead, but the costs were substantially greater,
requiring a finder’s fee, health insurance for the nanny, and use
of a car. Additionally Father presented no evidence of
alternative childcare services or that the cost of the overnight
childcare used is exorbitant when compared with other child care
services available.
Th[e] Court concluded that the overnight childcare sitter is
beneficial in cases of emergency. In addition, the sitter helps
the children with their homework, provides meals and assists
with bedtime and early morning school preparation. Although
[H.S.] is now 13 years old (she was 12 at the hearing on
January 9, 2013), th[e] Court reasoned that it is unfair for a 13
year old, who is faced with her own adolescent issues, to be
required to produce a safe and productive environment for her
younger sister and herself. Accordingly, an overnight childcare
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sitter is in the best interests of the children. Based on the
record of this case, the childcare incurred by Mother is
reasonable and necessary for her to maintain employment.
Trial Court Opinion, 6/12/2013, at 13-14.
The Pennsylvania Rules of Civil Procedure, with respect to child
support actions, are explicit that reasonable child care expenses are the
responsibility of both parents if necessary to maintain employment. Kersey
v. Jefferson, 791 A.2d 419, 425 (Pa. Super. 2002). The record supports
the trial court’s conclusions regarding the reasonableness and necessity of
Mother’s child care expenses with regard to maintaining her employment.
Therefore, Father’s third argument is without merit.
In Father’s fourth argument, he contends the trial court erred in
accepting Mother’s testimony regarding the child care expenses when Mother
did not produce adequate documentary evidence to substantiate her
testimony. He states the court “failed to take into consideration vacation or
personal time Mother used during which a babysitter was not necessary.”
Father’s Brief at 18. Moreover, he argues the court “accepted Mother’s
representations of the children’s expenses without substantiation of their full
amount. Mother did offer some cancelled checks for a small fraction of the
total amount claimed, but because she did not issue the babysitter a 1099 or
W-2, it cannot be determined what the true amount expended was.” Id. at
19. Therefore, Father concludes he should not be “obligated to pay a portion
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of an expense for which the [t]rial [c]ourt had scant documentation to even
establish the actual expended amount.” Id.
The record reflects that Mother incurs a child care expense of
$1.560.00 per month or $390.00 per week. N.T., 1/9/2013, at 14-15.
Mother submitted checks made to the babysitter, Laura Rehak, for her
services. Id. at 13. Mother pays Rehak $10.00 per hour from 5:15 p.m. to
7:15 a.m. the following morning. Id. at 13-14. She testified that up until
the date of the hearing, the sitter had provided care for the past six years
and has never asked for an increase in pay. Id. at 12, 15. Mother also
noted there is no outside facility that could care for her children overnight
while she is working. Id. at 12.
In its March 20, 2013, supplemental order, the court indicated “Father
failed to submit proof that the cost of securing competent child care is
exorbitant compared with other child care services available in the area.”
Supplemental Order, 3/20/2013, at 13. Moreover, in its Rule 1925(a)
opinion, the court found the following:
In this instant case, Mother incurs childcare expenses of
$1,560.00 per month to maintain employment. The record
evidences that Mother submitted photocopies of checks issued to
the children’s childcare sitter, Laura Rehak as Exhibit M-3. Th[e]
Court noted that Father did not object to the admission of Exhibit
M-3. These checks, along with Mother’s credible testimony
accurately evidence that she pays Laura Rehak $10.00 per hour
for her services. The record also shows that Mother has paid
Laura Rehak the same rate since 2008, when Father was ordered
to contribute to childcare. Th[e] Court accurately determined
that Mother incurs $1,560.00 per month for childcare based on
the photocopies of childcare payments and her credible
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testimony. Thus, there was sufficient evidence for th[e] Court to
order Father to contribute to childcare expenses.
Trial Court Opinion, 6/12/2013, at 15.
We note it is well-settled that the trial court, sitting as the finder of
fact, is free to weigh the evidence and assess the credibility of the
witnesses. Green v. Green, 783 A.2d 788, 791 (Pa. Super. 2001). Here,
the court found Mother’s testimony regarding child care expenses credible.
Moreover, Father could have called Rehak as a witness at the January 9,
2013, hearing but he did not. Likewise, he did not submit any evidence that
the child care expense was unreasonable. Rather, Father makes
unsubstantiated assertions that Mother has not provided proof of her child
care expenses or that what she did provide was inadequate. Accordingly,
Father’s fourth argument fails.
Next, Father argues the trial court’s calculation of the federal child
care tax credit was in error. He states that when the court used
Pennsylvania Child Support Guideline Worksheets to calculate Father’s
obligation for 2012 and 2013, it erred in its computation because (1) Mother
could only get the child care tax credit for a “qualifying child”, who was an
individual under the age of 13, (2) their oldest daughter had turned 13 on
January 17, 2013, and (3) therefore, she was no longer considered a
“qualifying child.” Father’s Brief at 20. Moreover, he contends:
Because there is only one qualifying child for 2013, the
child care tax credit is up to $3,000 instead of up to $6,000 for
2012 when there were two qualifying children. Yet, according to
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the Family Law Software, the child care tax credit was reduced
by merely $60 between 2012 and 2013. Because of this
anomaly, the calculation for either or both 2012 and 2013 is
inaccurate based on the child care tax credit. Therefore, the
guidelines should be run again.
Id.We note that Father fails to explain how this calculation alters or
affects his obligation pursuant to Pa.R.C.P. 1910.16-6(a)(1-2). Moreover,
like his third issue, Father also did not include this claim in his Rule 1925(b)
concise statement.4 As such, the trial court did not address the claim in its
Rule 1925(a) opinion. Accordingly, Father has waived this issue on appeal.
See Pa.R.A.P. 1925(b)(3)(iv) (dictating “that any issue not properly included
in the Statement … shall be deemed waived”).
In Father’s sixth claim, he argues the court erred in requiring him to
reimburse Mother for the Children’s summer camp because he was not
consulted about these expenses pursuant to the custody agreement.
Father’s Brief at 20, 22. He relies on Horowitz v. Horowitz, 600 A.2d 982(Pa. Super. 1991) to support his argument. Id. at 21. Moreover, he states
he “is under no obligation to continue to pay for summer camp just because
____________________________________________
4
Rather, in his concise statement, Father states: “The Trial Court erred in
calculating father’s support order as it failed to reduce the total childcare
expenses twenty-five percent (25%) to reflect the federal childcare tax
credit available to the mother.” Statement of Matters Complained of
Pursuant to Rule of Appellate Procedure 1925(b), 5/13/2013, at unnumbered
2.
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he has paid so in the past.” Id. at 22. He contends he merely did so
because he was under court order. Id.
Like private school tuition, the court may direct the obligor to
contribute to summer camp costs if it is a “reasonable need.” See Pa.R.C.P.
1910.16–6(d).
Here, Mother testified that A.S. attends gymnastics summer camp in
addition to year-round gymnastics training. N.T., 1/9/2013, at 20. Mother
stated that the parties’ other daughter, H.S., attends volleyball camp, which
she “highly excels” at and “enjoys.” Id. at 21.
The court found the summer camp expenses were reasonable based
on the following:
Th[e] Court did order Father to pay a total of $278.00 for
both children’s summer camp expenses because th[e] Court
determined that the summer camp expenses were reasonable
and consistent with the family’s standard of living and station in
life. See Holland v. Holland, 663 A.2d 768, 769 (Pa. Super.
Ct. 1995) (holding daughter’s equestrian activities were
important to her well-being and constituted “other needs,” which
were not specifically addressed by guidelines); Marshall v.
Marshall, 591 A.2d 1060, 1063 (Pa. Super. Ct. 1991) (holding
music lessons, dance lessons, and racquet and swim club
memberships were reasonable needs, which were not addressed
by guidelines). Here, [A.S.]’s gymnastics summer camp
expense for 2012, totaled to $336.00 and [H.S.]’s volleyball
summer camp expenses for 2012, totaled $150.00. Th[e] Court
noted that Haley attended summer camp prior to the parties’
separating. Additionally, Father contributed to summer camp
expenses for the calendar year of 2009. Th[e] Court also noted
that Father testified that he mailed Mother $252.00 for his
children’s summer camp. Although this is contested by Mother,
th[e] Court concluded that Father’s alleged summer camp
contribution evidences his consent to contribute to the children’s
summer camp expenses. Based on the record of this case, th[e]
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Court found that the summer camp expenses for both children
are reasonable based on the parties’ standard of living.
Moreover, the children are deserving of it, as it enhances their
socialization and is a cost both parents should happily incur.
Accordingly, the best interest of the children is served by
maintaining their standard of living and station in life.
Trial Court Opinion, 6/12/2013, at 17-18.
We agree with the court’s determination that there was sufficient
testimony that summer camp was a reasonable need based on the best
interest of the Children and the parties’ prior contributions. We reiterate
that it is the function of the trial court as fact-finder to weigh the evidence
presented and to assess the credibility of witnesses. Green, 783 A.2d at
791. The court again found Mother’s testimony credible regarding summer
camps. On the other hand, Father did not present any evidence to show
that summer camp, which has been a consistent part of the Children’s lives,
was not beneficial to them.
Additionally, Father’s reliance on Horowitz, supra, is misplaced. In
Horowitz, the wife claimed the trial court erred in failing to require husband
to pay $3,100.00 for the daughter’s summer "teen tour" across the country,
as required in the separation agreement for summer camp tuition.
Horowitz, 600 A.2d at 986. On appeal, a panel of this Court found the
claim was without merit based on the following:
Although husband agreed in other years to pay for summer
camps and related programs, we agree with the trial court’s
finding that the cross-country “teen tour” was of a far different
nature than the other camps, and at a much greater cost. Thus,
even though husband paid for other programs which were not
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defined strictly as summer camps, he was not obligated to pay
for Jennifer's “teen tour,” and the trial court found correctly
husband was not required to reimburse wife for this expense.
Id. at 986-987. Here, the record does not reflect that the Children’s
summer camps were far different from the camps they had done in the past
or were at a much greater cost. Therefore, we find no abuse of discretion on
the part of the trial court in determining that Father should pay a portion of
the Children’s summer camp expense. Accordingly, this argument is without
merit.
With respect to his eighth argument, Father claims the court erred in
determining he was obliged to pay part of the medical expenses because
there was no proof of payment. Father’s Brief at 22. He states the court
misconstrues his argument as solely challenging the Children’s orthodontia
expense. Father contends his issue is “that he is being required to
reimburse Mother when decisions that led to the medical bills were made
unilaterally by Mother, he has not been presented with the bills or the
insurance coverage, and the bills may not have been satisfied.” Id. at 22-
23.
Contrary to Father’s argument, he did specify the Children’s
orthodontia bills in his Rule 1925(b) concise statement: “The trial court
erred in its determination of Father’s obligation to pay part of the medical
expenses for children as the Court accepted documentation with no proof
that medical expenses were actually paid (that is the orthodontic
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payment plan).” Statement of Matters Complained of Pursuant to Rule of
Appellate Procedure 1925(b), 5/13/2013, at unnumbered 2 (emphasis
added).
As the trial court properly noted:
The law of the Commonwealth is well established that a party
complaining on appeal of the admission of evidence objected to
in the court below will be limited to the specific objection made
at trial. Aiello v. SEPTA, 687 A.2d 399, 403 (Pa. Commw.
1996). A failure to object to the admission of evidence ordinarily
constitutes a waiver of the right to object to the admissibility of
the evidence or to its use as legal evidence. Jones v.
Treegoob, 249 A.2d 352, 367 (Pa. 1969). A party must make a
timely and specific objection at the appropriate stage of the
proceedings before the trial court. Hong, 765 A.2d at 1123.
Furthermore, this Court is free to choose to believe all, part, or
none of the evidence presented. Stokes [v. Gary Barbera
Enterprises, Inc., 783 A.2d 296, 297 (Pa. Super. 2001)].
Here, Mother submitted evidence of unreimbursed medical
expenses for the children as Exhibit M-5 and Exhibit M-6.
Exhibit M-5 included the orthodontic payment plan bill for [H.S.].
Father’s failure to object to the admission of documentation
concerning the orthodontic payment plan constituted a waiver of
the right to object to the admissibility of the evidence or to its
use as legal evidence. As a result, th[e] Court was free to
consider all of the evidence concerning orthodontic medical
expenses and determine whether that evidence corroborated
with the parties’ testimony. Based on Exhibit M-5, th[e] Court
properly concluded that the orthodontia bill corroborated with
Mother’s testimony that she paid $4,800.00 for [H.S.]’s
orthodontia expenses and the bills marked “outstanding” meant
Father had not paid his portion of unreimbursed medical
expenses.
Trial Court Opinion, 6/12/2013, at 19-20.
A review of the record confirms that Father failed to object to the
admission of outstanding medical bills with respect to the Children. See
N.T., 1/9/2013, at 22-27. Therefore, we see no abuse of discretion with the
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court imputing the outstanding unreimbursed orthodontia expenses to
Father. Accordingly, this argument fails.
Next, Father complains the court erred in determining his contribution
to the unreimbursed medical expenses because no documentation of those
expenses was presented. Father’s Brief at 23. Specifically, he states that
according to the March 20, 2013, supplemental order, the parties were
required to produce documentation of unreimbursed medical expenses to the
other party no later than March 31st of the following calendar year, in which
the final medical bill to be allocated was received. Id. Father alleges
Mother violated the order with respect to the expenses incurred in 2012
because she never personally supplied him with the bills and he was never
provided with concrete information about the orthodontia treatment. He
contends the bills only became known to him when the “petitions” were filed.
Id. Moreover, he states that because “these petitions were filed a
significant amount of time after some of the final medical bills were received,
he necessarily objects to the untimely production of them.” Id. at 24.
Further, he states he “could not have raised th[e] specific issue below
because it was only when the Supplemental Order explicated the timeliness
requirement that Father could object that the bills have not been received in
a timely fashion.” Id.
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By way of background, in the March 20, 2013, supplement order, with
respect to Father’s 2011 income, Father’s 2012 income, and Mother’s 2013
income, the court provided, in relevant part:
2. From June 21, 2011 – January 8, 2012
…
c. The monthly support obligation includes cash medical
support in the amount of $250 annually for unreimbursed
medical expenses incurred for each child. Unreimbursed
medical expenses of the children that exceed $250
annually shall be allocated between the parties. The party
seeking allocation of unreimbursed medical expenses must
provide documentation of expenses to the other party no
later than March 31st of the year following the calendar
year in which the final medical bill to be allocated was
received.
…
3. From January 9, 2012 – December 31, 2012
…
c. The monthly support obligation includes cash medical
support in the amount of $250 annually for unreimbursed
medical expenses incurred for each child. Unreimbursed
medical expenses of the children that exceed $250
annually shall be allocated between the parties. The party
seeking allocation of unreimbursed medical expenses must
provide documentation of expenses to the other party no
later than March 31st of the year following the calendar
year in which the final medical bill to be allocated was
received. The unreimbursed medical expenses are to be
paid as follows:
1) 57% by Father and 42% by Mother. Father is to
contribute 57% of unreimbursed medical expenses
incurred from January 9, 2012 – December 31,
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2012. Accordingly, Father shall pay 57% of
$5,190.10 and $666.23, which totals $3,338.11.
Thus Father is ORDERED to pay $3,338.11 directly to
Mother[.]
…
4. From January 1, 2013 – Forward
…
c. The monthly support obligation includes cash medical
support in the amount of $250 annually for unreimbursed
medical expenses incurred for each child. Unreimbursed
medical expenses of the children that exceed $250
annually shall be allocated between the parties. The party
seeking allocation of unreimbursed medical expenses must
provide documentation of expenses to the other party no
later than March 31st of the year following the calendar
year in which the final medical bill to be allocated was
received. The unreimbursed medical expenses are to be
paid as follows:
1) 56% by Father and 44% by Mother. Thus,
Mother is to provide Father with unreimbursed
medical expenses and Father is to contribute 56% of
any and all unreimbursed medical expenses incurred
from January 1, 2013 – Forward.
Supplemental Order, 3/20/2013, at 20-23.
With respect to unreimbursed medical expenses, Pa.R.C.P. 1910.16-
6(c) provides, in pertinent part:
(c) Unreimbursed Medical Expenses. Unreimbursed medical
expenses of the obligee or the children shall be allocated
between the parties in proportion to their respective net
incomes. Notwithstanding the prior sentence, there shall be no
apportionment of unreimbursed medical expenses incurred by a
party who is not owed a statutory duty of support by the other
party. The court may direct that obligor's share be added to his
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or her basic support obligation, or paid directly to the obligee or
to the health care provider.
…
(3) Annual expenses pursuant to this subdivision (c), shall be
calculated on a calendar year basis. In the year in which the
initial support order is entered, the $ 250 threshold shall be pro-
rated. Documentation of unreimbursed medical expenses
that either party seeks to have allocated between the parties
shall be provided to the other party not later than March 31 of
the year following the calendar year in which the final bill
was received by the party seeking allocation. For purposes of
subsequent enforcement, unreimbursed medical bills need not
be submitted to the domestic relations section prior to March 31.
Allocation of unreimbursed medical expenses for which
documentation is not timely provided to the other party
shall be within the discretion of the court.
Pa.R.C.P. 1910.16-6(c) (emphasis added).
We note that the only part of the supplemental order that Father
makes reference to is on page 20, which actually refers to the unreimbursed
medical expenses from June 21, 2011 to January 8, 2012,5 and not the 2012
medical expenses he complains of in his brief.6 Nevertheless, as the trial
court properly found:
Father never objected to the admission of unreimbursed
medical expenses on the basis that the unreimbursed medical
expenses were not presented to Father prior to March 31 st of the
____________________________________________
5
With respect to these expenses, the court stated no evidence was
presented and therefore, Father was not required to contribute.
Supplemental Order, 3/20/2013, at 20-21.
6
Father does not reference or present any evidence regarding the 2013
medical expenses and therefore, we limit our analysis to the 2012 medical
expenses.
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years in question. As stated previously objections must be
timely and specific. Hong, 765 A.2d at 1123. The record shows
that Father claimed that Mother never presented him with
unreimbursed medical expenses or communicated about the
medical bills, but Father never specifically raised the issue that
the bills were not presented to Father prior to March 31st of the
years in question. The law has long been settled in Pennsylvania
that issues may not be raised for the first time on appeal.
Truesdale ex rel. Truesdale v. Albert Einstein Medical
Center, 767 A.2d 1060, 1063 (Pa. Super. Ct. 2001).
Even if Father had raised the issue properly at the trial
Court level, th[e] Court’s decision is still correct because the law
provides that allocation of unreimbursed medical expenses for
which documentation is not timely provided to the other party
shall be within the discretion of the court. See Pa.R.C.P. 1910-
16-6(c)(3). As such, th[e] Court has discretion to allocate
unreimbursed medical expenses for which documentation is not
timely provided to the other party.
Furthermore, th[e] Court noted Father’s contradictions
regarding unreimbursed medical bills. Father initially testified
that he never received any medical bills, but later admitted that
Mother attached the medical bills to her court filings, which were
served to him for his review. Th[e] Court noted that on January
9, 2013, Father filed a Reply to Mother’s October 11, 2012
Emergency Motion for an Evidentiary Hearing, admitting Mother
provided him medical bills on April 27, 2012 or at the parties’
conference on July 16, 2012. In Father’s Reply, Father stated he
would forward a check for fifty-eight percent (58%) of the
unreimbursed medical expenses beyond $250.00, which is the
responsibility of Father with the exceptions of the bill for braces.
See Father’s Reply, 1/9/13, at 5. Father’s Reply is an admission
that he received the 2012 medical bills before March 31 st, of
2013, which is the following year. Therefore, th[e] Court did not
err in ordering Father to contribute to unreimbursed medical
expenses as they were presented to Father prior to March 31 of
the year following the calendar year.
Trial Court Opinion, 6/12/2013, at 20-21. The record supports the court’s
determination. We emphasize while Father may not have received the
March 20th order until that time, the statute is clear that “documentation of
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unreimbursed medical expenses… shall be provided to the other party not
later than March 31 of the year following the calendar year.” Pa.R.C.P.
1910.16-6(c)(3). As such, Father would have been on notice that he was
required to object to the lack of documentation that Mother provided to him
for any year pursuant to the Rule. Moreover, pursuant to Pa.R.C.P.
1910.16-6(c)(3), it was at the trial court’s discretion where documentation
was not timely provided. Therefore, we conclude the trial court did not
abuse its discretion when charging Father with the unreimbursed medical
expenses.
Next, Father claims the court erred in failing to explicitly consider
Mother’s personal injury settlement in its child support calculation. He
states that the official note to Pa.R.C.P. 1910-16-2(a)(8), relied on by the
trial court, did not give the court “discretion to lower the amount of the
award or analyze how the award was used. It is clear that a settlement
amount is considered income available for purposes of child support.”
Father’s Brief at 25 (citation omitted). Moreover, he states the court erred
by including the settlement award by increasing the number of Mother’s
weekly work hours based on the following:
If the $7,000 personal injury settlement was truly considered for
2012, Mother’s income would be much greater, even considering
the slight increase in Mother’s hourly rate in 2013, than her
income in 2013. An additional 2.5 hours per week for one year
at Mother’s 2012 hourly rate of $17.03 per hour only accounts
for an increase of $2,213.90 when the entire $7,000 personal
injury settlement either should have been included fully by the
Trial Court in Mother’s 2012 income or the Trial Court should
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have explained how the remainder of the $7,000 will be treated
in future years.
Id. at 26.
Pursuant to the support guidelines, the “[m]onthly gross income is
ordinarily based upon at least a six-month average of all of a party's
income.” Pa.R.C.P. 1910.16-2(a). The statute sets forth the different types
of income, which are included. Id. Relevant to this issue is income from
“other entitlements to money or lump sum awards, without regard to source,
including lottery winnings, income tax refunds, insurance compensation or
settlements; awards and verdicts; and any form of payment due to and
collectible by an individual regardless of source.” Pa.R.C.P. 1910.16-
2(a)(8). The official note to Rule 1910.16-2(a)(8) provides, in pertinent
part:
The trial court has discretion to determine the most appropriate
method for imputing lump sum awards as income for purposes of
establishing or modifying the party's support obligation. These
awards may be annualized or they may be averaged over a
shorter or longer period of time depending on the circumstances
of the case. They may also be escrowed in an amount sufficient
to secure the support obligation during that period of time.
Pa.R.C.P. 1910.16-2(a)(8), Official Note.
Here, the court found the following:
This court incorporated the sound policy of this Commonwealth
that in child support cases a court must “consider the value and
extent of their … other financial resources.” Dugery v. Dugery,
276 Pa. Super. 51, 54, 419 A.2d 90, 91 (1980).
…
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Unlike Father, Mother was not terminated from her employment
and has year-long physical custody of the children without any
type of assistance from Father unless court-ordered. Mother
testified that she received $7,000 from a personal injury
settlement in 2012. Mother stated that she used the award to
pay bills and the outstanding mortgage on the house, which
benefited the children. Mother’s testimony indicates that she
used the funds to provide continued stability and continuity for
her and the children instead of using the funds to maintain a
higher standard of living for herself. Th[e] Court took Mother’s
testimony into consideration. To be fair, th[e] Court included
Mother’s settlement award to her income by increasing the
number of her weekly work hours from 37.5 to 40. Th[e] Court
concedes that it failed to explain how it allocated Mother’s
settlement award for 2012. Despite such harmless error, this
Court properly used its discretion to determine the appropriate
method for imputing Mother’s settlement award in setting forth
its Support Order.
Trial Court Opinion, 6/12/2013, at 21-22.
Based on the trial court’s explanation in its opinion, and in accordance
with the official note to Rule 1910.16-2(a)(8), we do not find that the trial
court has abused its discretion in determining the most appropriate method
for imputing Mother’s settlement awards as income for purposes of
establishing her support obligation. Furthermore, other than bald
assertions, Father has not presented any case law or evidence
demonstrating that its methodology was an abuse of discretion.
Accordingly, his tenth claim is without merit.
In Father’s penultimate issue, he contends the court erred in issuing a
support order in which the aggregate obligation was in excess of the federal
statute that caps an obligor’s child support obligation at no more than 65%
of his net income. Father’s Brief at 26. First, he states the court erred in
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dismissing this claim for failing to cite authority because he raised it in his
concise statement and therefore, he did not have to cite to authority. Id.Additionally, he argues his garnishments will exceed 65% of his disposable
income, even before his obligation for unreimbursed medical expenses over
$250.00 is considered, and therefore the court’s order exceeded the
maximum for which he can be responsible under the Federal Consumer
Credit Protection Law, 15 U.S.C. §§ 1671-1677. Id. at 27.
Here, the trial court found the issue was waived for failure to “cite
even one case in support of his position.” Trial Court Opinion, 6/12/2013, at
23. We are compelled to disagree. Pursuant to Pennsylvania Rules of
Appellate Procedure, a concise statement “shall concisely identify each ruling
or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge. The judge shall not require the
citation to authorities; however, appellant may choose to include pertinent
authorities in the Statement.” Pa.R.A.P. 1925(b)(4)(ii). Therefore, while it
would have been advantageous to identify the federal guideline Father was
relying on, Father was not required to cite authorities.
Turning to the merits of the claim, the Federal Consumer Credit
Protection Law provides, in pertinent part:
(2) The maximum part of the aggregate disposable earnings of
an individual for any workweek which is subject to garnishment
to enforce any order for the support of any person shall not
exceed--
…
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(B) where such individual is not supporting such a spouse or
dependent child described in clause (A), 60 per centum of such
individual’s disposable earnings for that week;
except that, with respect to the disposable earnings of any
individual for any workweek, the 50 per centum specified in
clause (A) shall be deemed to be 55 per centum and the 60 per
centum specified in clause (B) shall be deemed to be 65 per
centum, if and to the extent that such earnings are subject to
garnishment to enforce a support order with respect to a period
which is prior to the twelve-week period which ends with the
beginning of such workweek.
15 U.S.C § 1673(b)(2).
In conjunction with the federal statute, Pennsylvania Rule of Civil
Procedure 1910.21 addresses the withholding of an obligor’s income, in
relevant part, as follows:
(a) Immediate Income Withholding. Every order of court shall
contain an immediate order for the withholding of income unless
(1) there is no overdue support owing under the order and (2)
either the court finds there is good cause not to require
immediate income withholding or the parties agree in writing to
an alternative arrangement.
(b) Initiated Income Withholding. If there is no immediate
income withholding pursuant to subdivision (a), and nonpayment
of the support order causes overdue support to accrue, the court
shall enter an order for the immediate withholding of income.
…
(e) Notice to Obligor. Objections. A notice of entry of an order
for income withholding shall be served on the obligor. The
obligor may object to the order in writing or by personal
appearance before the county domestic relations section
within ten days after issuance of the notice. The grounds
for an objection are limited to the following mistakes of
fact: … (iii) the amount being withheld exceeds the
maximum amount which may be withheld under the
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federal Consumer Credit Protection Act, 15 U.S.C. § 1673.
If a mistake of fact has occurred, the order shall be modified
accordingly.
Pa.R.C.P. 1910.21(a), (b), (e) (emphasis added).
Here, Father did not file objections to the March 20, 2013 support
order, to which he takes issue in a timely manner, within ten days following
notice of the order. See Pa.R.C.P. 1910.21(e). Therefore, the court did not
err in denying his claim.7 Accordingly, we need not address it further.
Lastly, Father argues the court erred by failing to explore undisclosed
financial contributions to Mother. Father’s Brief at 29. Specifically, he
states:
Assuming for argument that it was appropriate for Father to pay
a portion of the cost of parochial school, Father implored the
court to evaluate the portion of the fee for which the Mother was
responsible. Father questioned the true income of Mother’s
household given that her net pay after babysitting expenses
leaves her with very little to cover shelter, food, and clothing
expenses for the entire year.
Id.Regarding this argument, the trial court found the following:
With regard to this allegation, Mother testified that she was not
receiving financial contributions from other sources. Father
offered no evidence or testimony to contradict her testimony and
support this allegation. As such, th[e] Court was forced to make
a credibility determination and decide this issue accordingly.
Such credibility determinations are within the sole province of
th[e] Court and there exists no evidence which would hint at an
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7
See Craley v. State Farm Fire & Cas. Co., 895 A.2d 530, 532-33 (Pa.
2006) (holding that this Court may affirm on any basis).
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abuse of discretion. Therefore, this error asserted by Father is
without evidentiary or factual support.
Trial Court Opinion, 6/12/2013, at 24.
We agree with the court’s conclusion. As stated above, the trial court
was in the position to weigh the evidence and assess the credibility of the
witnesses. Green, 783 A.2d at 791. Here, the court found Mother’s
testimony credible. Moreover, Father makes unsubstantiated claims that
Mother was receiving income from other sources. Accordingly, Father’s final
argument fails.
In conclusion, we affirm in part, and vacate in part, specifically with
respect to Father’s seventh claim regarding his health insurance
contribution. With respect to this issue, the trial court acknowledged its
error and requested a remand for recalculation to include an appropriate
allocation of Father’s medical insurance payments in accordance with
Pa.R.C.P. 1910.16-6(b).
Order affirmed in part and vacated in part. Case remanded with
instructions. Jurisdiction relinquished
President Judge Emeritus Ford Elliott joins the memorandum. Judge
Strassburger files a concurring/dissenting memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/2014
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