B.A.O. v. M.A.O.

J-A10039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.A.O. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
M.A.O. : No. 1065 EDA 2019
Appeal from the Order Dated March 11, 2019
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): April Term, 2014, No. 008441,
PACSES No. 016109756
BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: July 23, 2020
B.A.O. (Wife) appeals from the order entered in the Court of Common
Pleas of Philadelphia County (trial court) denying her exceptions to the
master’s proposed order decreasing the support obligation of M.A.O.
(Husband) and adopting it as a final order. We affirm in part and quash in
part.
I.
The parties were married in August 1994 and had three children
together. Husband has a Ph.D. in English and worked as a teacher for the
School District of Philadelphia for seventeen years. Wife was a homemaker
from 1998 until 2015 but has since graduated from law school and is an
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1
J-A10039-20
attorney. Husband and Wife separated in April 2014 when their children were
ten, twelve and fifteen years old.
Wife filed a complaint in divorce on April 15, 2014, seeking equitable
distribution of the parties’ marital property and requesting alimony pendete
lite, alimony, spousal support and child support. In November 2014, the trial
court entered an order awarding Wife child and spousal support in the
amounts of $1,806.00 and $1,400.00 per month, respectively.
On December 12, 2014, Husband filed a petition seeking a reduction in
his support obligation based on changing circumstances in his employment.
Between 2014 and 2017, the parties filed several pleadings disputing
Husband’s support obligation. Husband retired from the school district in May
2015 when he was sixty-four years old and eligible for social security benefits
and his public-school pension. He had filed a workers’ compensation claim
against the school district and received a lump sum payment in the amount
of $28,259.94 in August 2015. His retirement was precipitated by his
development of medical issues with his knees that affected his ability to walk
up and down stairs, combined with his transfer to an elementary school that
did not have an elevator and necessitated walking thirty-four flights of stairs
daily. After Husband retired, he continued to work for multiple employers,
including Archbishop Carroll High School and Temple University, to
supplement his retirement income.
-2-
J-A10039-20
On August 29, 2017, the trial court remanded the matter for a full
hearing before a new support master to consider the parties’ earning capacity
and Husband’s lump sum workers’ compensation payment. The master held
hearings in October 2017 and March 2018 and assessed Wife an earning
capacity of $30,000.00 per year based on her experience, education and skill.
The master did not assess Husband an earning capacity in excess of his actual
earnings. Husband’s social security payments, pension payments and
supplemental income were included as income for calculation of his support
obligation. The master entered a proposed order on October 29, 2018,
providing for a gradual reduction in Husband’s total child and spousal support
obligation from January 2015 through January 2018, with monthly support
decreasing from $3,504.00 to $1,163.00. Regarding child support, the order
set forth Husband’s monthly obligation as follows: $1,783.00, effective
January 1, 2015; $621.00, effective January 1, 2016; $1,194.00, effective
September 1, 2016; $338.00, effective January 1, 2017, with all payments
terminating on June 22, 2017.
The trial court held a hearing on Wife’s exceptions to the proposed order
on March 11, 2019, and denied her exceptions and made the master’s order
a final order of court. Wife timely appealed, and she and the trial court
complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b).
-3-
J-A10039-20
II.
At the outset, we recognize that at the time of the hearing, the parties
were still married and a divorce decree had not been entered. Generally, only
final orders are appealable. See Pa.R.A.P. 341(b)(1). Even though they were
considered together below and the trial court issued one order resolving the
matter, only the child support portion of that order is before us because, until
the divorce is granted and all economic issues are resolved, the spousal
support portion is not final. See Capuano v. Capuano, 823 A.2d 995, 998
(Pa. Super. 2003). Though the resolution of the issues in this appeal may
have an impact on the issues in the spousal support order, the parties may
appeal the spousal support portion of the order once a final divorce decree is
entered and all of the parties’ economic matters are resolved. See
Hrinkevich v. Hrinkevich, 676 A.2d 237, 239 (Pa. Super. 1996) (stating
portion of trial court order attributable to child support is final and immediately
appealable, while portion of order addressing spousal support is interlocutory
and subject to quashal).1
____________________________________________
1 Appellate review of child support matters is governed by an abuse of
discretion standard. See J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super.
2015), appeal denied, 130 A.3d 1290 (Pa. 2015). “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.” Id. (citation omitted).
“Moreover, it is within the province of the trial court to weigh the evidence
and decide credibility and this Court will not reverse those determinations so
long as they are supported by the evidence.” Brubaker v. Brubaker, 201
A.3d 180, 184–85 (Pa. Super. 2018). Although a master’s report and
-4-
J-A10039-20
III.
In a multi-layered argument, Wife challenges the trial court’s reduction
of Husband’s support obligation by including Husband’s pension income in
determining his support obligation. Citing to Rohrer v. Rohrer, 715 A.2d
463 (Pa. Super. 1998), she contends that the trial court had initially excluded
the pension from support calculations because it was to be subject to equitable
distribution, and that in now allowing it to be used in calculation of his support
was an abuse of discretion. Wife also maintains that the trial court’s treatment
of the pension essentially allows Husband to use a marital asset to pay his
individual support obligation.
A.
We begin with Wife’s claim that the trial court’s treatment of Husband’s
pension as income constituted an abuse of discretion under our decision in
Rohrer. “When determining income available for child support, the trial court
must consider all forms of income.” Berry v. Berry, 898 A.2d 1100, 1104
(Pa. Super. 2006) (citation omitted); see also Pa.R.C.P. 1910.16-2(a). The
Domestic Relations Code defines “income” as follows.
“Income.” Includes compensation for services, including, but not
limited to, wages, salaries, bonuses, fees, compensation in kind,
commissions and similar items; income derived from business;
gains derived from dealings in property; interest; rents; royalties;
dividends; annuities; income from life insurance and endowment
contracts; all forms of retirement; pensions; income from
____________________________________________
recommendation is only advisory, it must be given the fullest consideration,
especially on the issue of the parties’ credibility. See id.
-5-
J-A10039-20
discharge of indebtedness; distributive share of partnership gross
income; income in respect of a decedent; income from an interest
in an estate or trust; military retirement benefits; railroad
employment retirement benefits; social security benefits;
temporary and permanent disability benefits; workers’
compensation; unemployment compensation; other entitlements
to money or lump sum awards, without regard to source, including
lottery winnings; income tax refunds; insurance compensation or
settlements; awards or verdicts; and any form of payment due to
and collectible by an individual regardless of source.
23 Pa.C.S. § 4302. Income from pensions then is required to be included in
calculating a spouse’s support obligations.
Rohrer did not address pensions but what was income derived from a
business under 23 Pa.C.S. § 4302, specifically, whether retained earnings
should be considered as income for support or as an asset in equitable
distribution. There, the trial court had ordered that the retained income
should be used as income for the purpose of child support. The master
included the retained earnings from the years prior to the support
determination as an asset. This Court affirmed the arrangement, holding that
it was not an impermissible “double-dip” or counting the same asset as both
property for distribution and income for support. In this case, however, the
principles discussed in Rohrer do not apply, as there is no allegation that the
trial court permitted Husband to “double dip” using his pension.
With regard to Wife’s contention that the trial court’s treatment of
Husband’s pension essentially allows him to use a marital asset to pay his
individual support obligation, the trial court explained:
-6-
J-A10039-20
The amount of support awarded is generally based on the
parties’ monthly net income. Pa.R.C.P. 1910-16-2.[2] The
definition of income includes compensation from pensions and all
forms of retirement. 23 Pa.C.S. 4302. The Master’s inclusion of
Husband’s pension as income for support calculations is correct
under the applicable law. . . . The support Master’s calculations
include all forms of income at the times that they were received,
including Husband’s pension when Husband retired in July of
2015. Husband’s pension was correctly counted as income for
support purposes as defined by statute.
(Trial Ct. Op., at 7-8).
We agree with the trial court’s analysis and discern no abuse of
discretion in its treatment of Husband’s pension.
B.
Wife also claims that the trial court erred in reducing Husband’s support
obligation where he voluntarily retired from his position as a public school
teacher despite having three minor children. She also argues that the trial
court should have assigned Husband an earning capacity because he
____________________________________________
2 Generally, the support amount awarded is based on the parties’ monthly net
income.
(a) Monthly Gross Income. Monthly gross income is ordinarily
based on at least a six-month average of a party’s income. The
support law, 23 Pa.C.S. § 4302, defines the term “income” and
includes income from any source. The statute lists many types of
income including, but not limited to:
* * *
(4) pensions and all forms of retirement;
Pa.R.C.P. 1910.16-2.
-7-
J-A10039-20
deliberately remained underemployed in order to decrease his support
obligation. Wife maintains that Husband should be attributed an income equal
to his prior full-time teaching position. (See Wife’s Brief, at 4, 18-24).
Our Rules of Civil Procedure provide the following guidelines concerning
support:
(d) Reduced or Fluctuating Income.
(1) Voluntary Reduction of Income. When either party
voluntarily assumes a lower paying job, quits a job, leaves
employment, changes occupations or changes employment status
to pursue an education, or is fired for cause, there generally will
be no effect on the support obligation.
(2) Involuntary Reduction of, and Fluctuations in, Income.
No adjustments in support payments will be made for normal
fluctuations in earnings. However, appropriate adjustments will
be made for substantial continuing involuntary decreases in
income, including but not limited to the result of illness, lay-off,
termination, job elimination or some other employment situation
over which the party has no control unless the trier of fact finds
that such a reduction in income was willfully undertaken in an
attempt to avoid or reduce the support obligation.
* * *
(4) Earning Capacity. If the trier of fact determines that
a party to a support action has willfully failed to obtain or
maintain appropriate employment, the trier of fact may
impute to that party an income equal to the party’s earning
capacity. Age, education, training, health, work experience,
earnings history and child care responsibilities are factors which
shall be considered in determining earning capacity. In order for
an earning capacity to be assessed, the trier of fact must state the
reasons for the assessment in writing or on the record. Generally,
the trier of fact should not impute an earning capacity that is
greater than the amount the party would earn from one full-time
position. Determination of what constitutes a reasonable work
regimen depends upon all relevant circumstances including the
choice of jobs available within a particular occupation, working
-8-
J-A10039-20
hours, working conditions and whether a party has exerted
substantial good faith efforts to find employment.
Pa.R.C.P. 1910.16-2. (emphasis added).
The trial court explained its rationale in declining to impute Husband an
income capacity as follows:
The Master heard testimony, received evidence, and
outlined her findings of Husband’s income, earning capacity,
property owned, debt, and expenses in the Master’s Report.
Husband’s gross income is $1,385.00 [] bi-weekly from his
teaching position at Archbishop Carroll High School. Husband also
receives $2,016.89 [] from Social Security benefits, and
$2,230.46 [] from his pension. Husband also teaches at
Community College of Philadelphia and Temple University as an
adjunct professor. Based on the allowable evidence at the
Master’s hearing, the Master found that Husband has continued to
work for multiple employers in his field to support his retirement
income. The Master found that Husband did not retire to avoid
his support obligation, and declined to assess an additional
earning capacity over Husband’s reported income.
The trial court found no error of fact or law with the Master’s
findings. Husband was sixty-four [] years of age when he retired.
Husband was eligible for Social Security benefits and his public
school pension. Additionally, Husband worked multiple jobs within
his field to supplement his retirement income. Wife received
Social Security Derivative benefits for the children, and Husband’s
Social Security and pension payments along with supplemental
income from additional employment were included as income for
calculation of spousal support. Husband has continuously worked
multiple jobs to supplement his retirement income. Husband has
not willfully failed to obtain or maintain employment and therefore
cannot have an income imputed against him in excess of his
reported income.
(Trial Ct. Op. at 9-10).
Again, we agree with the trial court. As previously mentioned, a
master’s findings are to be given great deference, especially regarding
-9-
J-A10039-20
credibility determinations. This is “because the master had the opportunity to
observe and assess the behavior and demeanor of the parties.” Brubaker,
supra at 184–85 (citation omitted). In this case, the master and the trial
court, after weighing the parties’ testimony and observing their demeanor,
made a specific finding that Husband did not deliberately retire in order to
evade his support obligations. Instead, he retired at a typical retirement age
and his retirement was precipitated by a medical issue that was not
accommodated by the school district. Even after retirement, Husband
continued to supplement his retirement income with outside employment. We
discern no abuse of discretion in the trial court’s declining to impute Husband
an earning capacity.3
C.
In her final issue, Wife argues that the trial court erred in failing to
enforce prior orders entered in this matter compelling Husband to produce
documentation of his income and earning capacity. (See Wife’s Brief, at 4,
26). She maintains that because the trial court did not compel production of
____________________________________________
3 We note that Wife’s claim that the trial court’s support order violates the
coordinate jurisdiction rule because it does not impute an earning capacity to
Husband as prior orders had directed is belied by the record. (See Wife’s
Brief, at 25) (stating that the orders of July 8, 2015, August 4, 2016, and
August 29, 2017, required Husband be assigned an earning capacity). Our
review confirms the trial court’s assessment that the previous orders did not
require the master to attribute an earning capacity to Husband and instead
provided for further hearings to determine if his support obligation was
appropriate. (See Trial Ct. Op. at 8).
- 10 -
J-A10039-20
these documents, Husband failed to meet his burden of proof to establish he
is entitled to a reduction in his support obligation. (See id. at 28).
Our review of the three orders Wife references, entered on July 8, 2015,
August 4, 2016, and August 29, 2017, reflect that they generically directed
Husband to produce documentation concerning his income and the lump sum
workers’ compensation payment to determine his support obligation. (See
Orders 7/08/15, 8/04/17, 8/29/17). The record shows that he complied with
this directive by submitting documentation relating to his economic
circumstances, including his pension statement, paystubs from various
employers, his tax return, social security benefit letter, and a distribution
letter showing that he received a net lump sum payment of $28,259.94 on
the workers’ compensation claim. Wife’s assertion that there was a dearth of
evidence concerning Husband’s income and ability to pay support are without
merit.
Order affirmed in part as it pertains to child support only. Appeal
quashed in part as it relates to spousal support. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/20
- 11 -