Blystone, R. v. Blystone, R.

J-A25017-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RONDA D. BLYSTONE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RUSSELL B. BLYSTONE, III :
:
Appellant : No. 461 WDA 2021
Appeal from the Order Entered March 15, 2021
In the Court of Common Pleas of Westmoreland County
Domestic Relations at No(s): 1359 DR 2019
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: APRIL 20, 2022
Appellant, Russell B. Blystone, III (“Father”), appeals from the order
entered in the Westmoreland County Court of Common Pleas, requiring him
to pay Appellee, Ronda D. Blystone (“Mother”), $100.00/month in child
support for the parties’ minor daughter, R.B. (“Child”) (born in November
2006). We affirm.
The relevant facts and procedural history of this case are as follows.
The parties married in 2006, separated in 2008, and divorced in 2011. They
are the biological parents of Child. On October 15, 2019, Mother filed a
complaint for child support. The matter came before a hearing officer on
September 23, 2020. On September 28, 2020, the hearing officer issued the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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following findings of fact and conclusions of law:
Findings of Fact
1. [Mother] and [Father] were the only two witnesses to
testify.
2. The summary of [Mother’s] testimony is as follows:
a. …Mother is 55 years old and resides in Leechburg,
Pennsylvania with her [m]other, [R.S.].
b. Mother and Father have 50/50 equal custody of the
minor child…age 13, pursuant to a Custody Order of Court
entered in 2013. The parties share physical custody on a
week-on/week-off basis.
c. The parties were married in 2006, separated in
2008, and were divorced on September 15, 2011.
d. Mother graduated high school in 1983 and
attended 9 months of school to become a medical assistant.
Mother obtained a certificate but did not continue to renew
her certificate over the years.
e. Mother worked at McDonalds for over 25 years.
She stopped working when the minor child was born.
Mother stated that, while she worked at McDonalds, she also
worked on a part-time basis for 2 days per week as a
medical assistant for a period of time.
f. Mother previously worked at the Appleseed
Learning Center in Leechburg, Pennsylvania, in the childcare
field for approximately one (1) year. Mother stated that she
also worked for approximately one (1) year doing
cosmetology after she obtained a license.
g. The minor child…was born with Down’s Syndrome
and has had numerous surgeries over the years, but is
considered to be in good health currently. [Child] has
medical appointments periodically for various conditions and
issues. [Child] no longer wears orthotics or braces and only
wears insoles in her shoes.
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h. [Child] is enrolled in 8th grade in Kiski Area
Intermediate School and has an I.E.P. [Child] attends life
skills classes four (4) days a week, currently, and has one
day of on-line classes per week.
i. Pursuant to an Order of Court dated March 12,
2013, Mother is solely responsible for scheduling the child’s
doctor, dental, and medical appointments. Both parents
typically attend the child’s medical appointments.
j. Mother is not currently employed.
k. Beginning in August 2020, Mother began receiving
food stamps for herself and the minor child in the amount
of approximately $300.00 per month.
l. Mother has health insurance (UPMC for You) for
herself and the minor child through the state at no cost to
Mother.
m. According to Mother, prior to August of 2019, the
minor child received Supplemental Security Income (SSI) of
approximately $524.34 per month.
n. Due to Father’s Social Security Disability[,] the
minor child receives a derivative benefit from Social Security
every month. This began in August of 2019.
o. For approximately two months, (August and
September of 2019), Mother had been designated the
representative payee for the child and received one or two
Social Security payments of $973.00 that were directly
deposited into her checking account.
p. Mother testified that ICCAP, or the Indiana County
Community Action Program, is now the payee for the minor
child’s Social Security derivative benefit. This began in
October 2019. Mother states that she has no idea how
ICCAP became involved in her child’s Social Security case
and she has never received any documents or statements
from ICCAP.
q. Mother stated that in October 2019, she received a
payment from ICCAP in the amount of $415.00 for the child.
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It is noted that Mother and Father each received a derivative
payment for the child in the amount of $415.00 per month
starting in October of 2019.
r. As of January 2020, Mother and Father each
receive a derivative benefit for the child in the amount of
$422.00 per month.
s. Mother has not received any paperwork directly
from ICCAP. Mother believes that the Social Security Office
sent her mail to Father’s address and has been unable to
straighten it out.
t. Mother filed income taxes for 2019 because she
cashed in some bonds that were under $1,000.00. Mother
did not claim the child tax credit for [Child] and indicates
that Maternal Grandmother has taken the child tax credit for
the child for the past several years on her income tax return.
Prior to this year, Mother had not filed income taxes since
2010.
u. Mother stated that she is not employed currently
as she is busy with her daughter and helps her with her
schooling. Mother stated that since 2010, she has applied
for approximately ten (10) different jobs but never got calls
back. Several years ago, Mother applied for a job in a store,
but did not obtain the job.
v. Mother believes that if she tried to work at
McDonalds again, she would have to work around her
custody schedule for the child.
w. Mother received a stimulus check in 2020 in the
amount of $1,200.00. Mother stated that she was unaware
of whether Maternal Grandmother received a stimulus check
for the child.
x. Mother confirmed on cross-examination that she
received approximately $10,000.00 in August 2019
pursuant to the August 16, 2019 Order of Court in the
parties’ previous support case [which was ultimately
dismissed by a consent order entered by the parties].
Mother spent the money on games and clothes for the child
and has no money remaining. Mother testified that when
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she needs money, Maternal Grandmother gives her money
and covers all of her expenses for herself and the child.
y. Mother stated that she did not receive any child
support for approximately three (3) years, until she received
$10,000.00 in August 2019. Mother stated that for three
(3) years, Maternal Grandmother paid for all of the child’s
expenses. Mother has no savings.
z. On cross-examination, Mother stated that she
never received any payment from the Social Security Office
in the amount of $7,173.33. Mother was made aware from
her attorney at some point of this amount possibly owed to
her by Social Security, but [M]other did not contact Social
Security directly to investigate why she didn’t receive said
amount.
3. The summary of [Father’s] testimony is as follows:
a. …Father is 52 years old and resides in Apollo,
Pennsylvania. Father owns his home and his grandmother,
[J.B.], age 96, resides with him.[1]
b. Father graduated high school and worked at Ross
Auto Body for 15 years until approximately 2012, when he
suffered the first of two strokes. Father’s job involved auto
mechanics and detail work. Father had prior jobs in
woodworking and in the tool and die industry. Father was
laid off in 2012. At that time, his earnings were $60,000.00
annually.
c. Father is not currently employed. Father has not
been employed since 2016. Father had a stroke in 2012 and
a second stroke in 2015. Father states that he is totally
disabled and unable to work. Father has partial paralysis on
his left side and congenital degenerative disc in his mid to
lower back as well as various other ailments.
d. Father receives Social Security Disability benefits
in the amount of $1,833.00 per month. Father confirmed
that Social Security has deemed his date of disability to be
____________________________________________
1 The record indicates that Father’s grandmother has since passed away.
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February 26, 2016. While he was awaiting a determination
for his Social Security Disability, he received cash assistance
and food stamps for himself. These benefits stopped when
he began receiving Social Security Disability.
e. Father’s health insurance is through Medicare and
$144.60/month is deducted from his Social Security
Disability benefit.
f. Father also receives a derivative benefit from
ICCAP for the minor child in the amount of $422.00 per
month.
g. Father indicated that Mother was the payee for the
child’s benefit initially. Father went to the Social Security
Office and requested to become the representative payee
for the child. The Social Security Office asked him a series
of questions at this meeting and informed him that they
were going to conduct an investigation. Father believes that
the investigation was because Mother should have been
giving him half of the child’s Social Security SSI payment
retroactive to February 2013.
h. Thereafter, [F]ather was informed by the Social
Security Officer that they were going to utilize an
independent entity, ICCAP as the representative payee for
the minor child. Father received a telephone call from ICCAP
and later signed the paperwork to approve ICCAP as the
child’s representative payee. Father confirmed that ICCAP
deposits $100.00 per month for the child into a savings
account and charges a $44.00 monthly service fee.
i. Father does not have any health insurance cards
through UPMC for the child.
j. Father attends all of the minor child’s medical
appointments. Father is willing to have the appointments
scheduled during his periods of custody, however, Mother
typically schedules the appointments during her periods of
physical custody. Father stated that the child is doing well
and is in good health and there are some months where the
child has no medical appointments. She is not in need of
any surgery and has no other medical needs currently.
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k. The child has weekly therapy services including
physical therapy, speech and occupational therapy. All
therapies occur in the school setting.
l. On cross-examination, Father confirmed that he
requested to be the representative payee for the child’s
derivative check at the Social Security Office and likely set
into motion the investigation that resulted in choosing
ICCAP to be the representative payee for the child.
m. Father confirmed that $100.00 per month is placed
into a savings account for the minor child. Father is unable
to access said account.
n. On cross-examination, Father denied working on
any vehicles since 2016. Further, Father denied working on
his own vehicle doing any oil changes or brake work.
o. On cross-examination, Father confirmed that he
has not applied for any jobs and has not worked since he
had his second stroke. Father stated that he doesn’t do very
much other than household chores and he is able to mow
his lawn with his tractor. Father has a valid Pennsylvania
Driver’s License and has no restrictions in operating a motor
vehicle. Father owns a vehicle and has no car payment, but
pays for car insurance.
p. On cross-examination, Father confirmed that he
added himself to his grandmother’s checking account in
January 2019 at Apollo Trust Company. This was due to his
Grandmother’s dementia. He has not had a checking
account or bank account for many years. Father testified
that for many years (2014-2019), his family members paid
his bills, including his mother, sister and grandmother.
Father testified that his grandmother paid the insurance for
his vehicle and paid electric and gas for the home. Father
used food stamps and assistance for his expenses, including
gas money. Father stated that he now pays his bills,
including gas, electric, water, sewage, cable and garbage
bills by paying the majority of his bills in cash. Father also
uses Western Union to pay bills or uses a bank debit card or
a check. Father stated that he got in the habit of doing this
and he likes to know that his bills are fully paid by using
cash.
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q. Father confirmed that the bank account at Apollo
Trust Company contained his own money, the child’s money
and his grandmother’s money. Father stated that the bills
and expenses vary each month and cover all three (3)
individuals.
r. Father did receive a stimulus check in 2020 in the
amount of $1,200.00, but did not receive a stimulus check
for the minor child.
s. Father has not filed taxes since 2015, per the
advice of his accountant.
Legal Conclusions
* * *
8. The Hearing Officer has reviewed [M]other’s testimony.
Based on Mother’s age, health and job history, the Hearing
Officer finds that it is reasonable and appropriate to impute
[M]other with part-time [earning capacity] for 20 hours per
week at $10.00 per hour. Mother also receives $422.00 per
month for the child’s Social Security derivative benefits.
Although Mother’s counsel argued that the involvement of
ICCAP necessitated a deduction of $44.00 per month in fees
and $100.00 per month to a savings account for the child,
which should be considered in the support calculation, the
Hearing Officer is not persuaded by this argument and notes
that neither party reported filing an appeal to the decision
made by the Social Security office to utilize ICCAP as the
representative payee for the minor child.
9. The Hearing Officer finds that, based upon Mother’s age,
health and job history, Mother’s net monthly income is
determined to be $1,222.00.
10. Based upon Father’s Notice of Decision made by the
Social Security Administration, Father is deemed disabled
and unable to work. Father receives Social Security
disability payments of $1,833.00 per month. The Hearing
Officer accepts the findings of the Social Security
Administration and does not find it reasonable or
appropriate to impute any additional wages or earning
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capacity for [F]ather, based upon his age, health and job
history.
11. Father also receives $422.00 per month for the child’s
Social Security derivative benefits. Accordingly, the Hearing
Officer finds that Father’s net monthly income is determined
to be $2,255.00.
12. The Hearing Officer has relied upon Pa.R.C.P. 1910.16-
2(b)(2)(i)(A)(I-IV) in calculating the monthly child support
obligation in this case, and has utilized a Guideline calculator
spreadsheet, noting that [F]ather is the obligor due to his
higher monthly net income, since the parties have equally
shared physical custody. See also Pa.R.C.P. 1910.16-
2(b)(2)(i)(A)[-](E).
13. In accordance with the Pennsylvania Support
Guidelines, and effective October 11, 2019, [Father] shall
pay $100.00 per month for the support of the minor child
[(rounded up from $97.45)], plus $20.00 per month toward
arrears. The unreimbursed medical expenses are to be paid
as follows: 65% by [Father] and 35% by [Mother].
(Hearing Officer’s Findings of Fact/Conclusions of Law, 9/28/20, at 1-8; 10-
11) (most internal citations and footnotes omitted).
Father timely filed exceptions to the hearing officer’s recommendation
on October 27, 2020, and Mother filed cross-exceptions on November 20,
2020. The court held a hearing on the parties’ exceptions on March 4, 2021.
On March 15, 2021, the court denied Father’s exceptions and Mother’s cross-
exceptions, and ordered that the September 28, 2020 order remain in effect.
Father timely filed a notice of appeal on April 6, 2021. On April 30, 2021, the
court ordered Father to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Father timely complied on May 20,
2021.
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Father raises six issues for our review:
Whether the trial court erred in refusing to calculate the
support obligation based upon the formula set forth at
Pa.R.C.P. 1910.16-4(a)(2), Part II(11)(a)-(f) and further
discussed at Pa.R.C.P. 1910.16-4(c)(1)-(2), and
alternatively, if Pa.R.C.P. 1910.16-4(A)(2), Part II(A)-(F) is
read as excluding parties receiving social security benefits,
then the law is unconstitutional as applied to the present
case.
Whether the trial court erred in imputing [Mother] an
income of $10.00/hour at 20 hours per week where the
evidence clearly indicates that [Mother] can work full time
at a higher rate of pay based on twenty-five years of
experience in the food industry, willful refusal to obtain
gainful employment over ten years, and the minimal needs
of the minor child.
Whether the trial court erred in failing or refusing to
amortize or otherwise analyze the impact of [Mother’s]
pending receipt of the child’s social security derivative
benefits in the amount of $7,173.33 as part of the support
determination.
Whether the trial court erred in failing or refusing to consider
the impact of an overpayment in support to [Mother], where
[Mother] previously received Social Security Income (SSI)
on behalf of the child and which was recouped by [Mother]
in the amount of $32,999.00 when awarded benefits as a
result of [Father’s] receipt of social security disability
benefits.
Whether the trial court erred in failing or refusing to apply a
downward deviation in support owed by [Father] where
[Mother] allowed the maternal grandmother to claim the
minor child on her tax returns for many prior years,
resulting in maternal grandmother’s receipt of the federal
child tax credit and pandemic dependent stimulus checks.
Whether the trial court erred in refusing to find that the
presumed support obligation of [Father] was unjust or
inappropriate under Pa.R.C.P. 1910.16-1(d) after
considering all relevant evidence as a whole.
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(Father’s Brief at 4-5) (internal footnotes omitted).
Our standard of review regarding child support orders is well settled:
When evaluating a support order, this Court may only
reverse the trial court’s determination where the order
cannot be sustained on any valid ground. We will not
interfere with the broad discretion afforded the trial court
absent an abuse of the discretion or insufficient evidence to
sustain the support order. An abuse of discretion is not
merely an error of judgment; if, in reaching a conclusion,
the court overrides or misapplies the law, or the judgment
exercised is shown by the record to be either manifestly
unreasonable or the product of partiality, prejudice, bias or
ill will, discretion has been abused. 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.
C.H.Z. v. A.J.Y., 262 A.3d 604, 607 (Pa.Super. 2021) (internal citation
omitted). “To the extent the issues involve interpretation and application of
the Rules of Civil Procedure, which are questions of law, we employ a de novo
standard of review and plenary scope of review.” Id.In his first issue, Father argues that the trial court failed to utilize the
appropriate support obligation calculation by not applying the shared custody
offset formula set forth in Pa.R.C.P. 1910.16-4(a)(2), Part II(a)-(f), as
mandated at Pa.R.C.P. 1910.16-4(c)(1)-(2). Father asserts the court did not
analyze the rebuttable presumption regarding a support reduction set forth in
Pa.R.C.P. 1910.16-4(c)(1), thereby failing to conduct the shared custody
analysis of the support obligation as required by the law and facts of the case.
Essentially, Father claims the relevant rules of civil procedure mandate that
he receives a reduction in his support obligation because he shares equal
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custody of Child with Mother.
Alternatively, Father contends that if Rule 1910.16-4(a)(2), Part
II(11)(a)-(f) is read as excluding parties receiving Social Security benefits
from obtaining the shared custody offset, then the law is unconstitutional as
applied to Father. Father maintains his equal protection rights are being
violated because he is being treated differently than other obligor parents with
shared custody of their children—namely, by not receiving a downward shared
custody deviation solely based on his status as a person qualified to receive
Social Security Disability benefits. Father contends there is no rational
relationship to a government interest in denying an obligor parent with shared
custody a downward child support deviation simply because he or she receives
social security disability payments, as opposed to an obligor parent with
shared custody who does not receive disability payments. Father suggests
Rules 1910.16-4(c)(1) and 1910.16-2(b)(2)(i)(A)(I-V) are unconstitutional as
applied in this case, and this Court must reverse and remand for recalculation
of the support order. We disagree.
Pennsylvania Rule of Civil Procedure 1910.16-4 provides, in pertinent
part:
Rule 1910.16-4. Support Guidelines. Calculation of
Support Obligation, Formula
(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
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obligations. In high-income cases, the trier-of-fact shall use
either the subdivision (1)(Part B) 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.
* * *
(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.
* * *
(c) Substantial or Shared Physical Custody.
(1) When the children spend 40% or more of their time
during the year with the obligor, a rebuttable presumption
arises that the obligor is entitled to a reduction in the basic
support obligation to reflect this time. This rebuttable
presumption also applies in high income cases decided
pursuant to Rule 1910.16-3.1. Except as provided in
subsection (2) below, the reduction shall be calculated
pursuant to the formula set forth in Part II of subdivision (a)
of this rule. For purposes of this provision, the time spent
with the children shall be determined by the number of
overnights they spend during the year with the obligor.
* * *
(2) Without regard to which parent initiated the support
action, when the children spend equal time with their
parents, the Part II formula cannot be applied unless the
obligor is the parent with the higher income. An order shall
not be entered requiring the parent with the lower income
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to pay basic child support to the parent with the higher
income. However, this subdivision shall not preclude the
entry of an order requiring the parent with less income to
contribute to additional expenses pursuant to Pa.R.C.P. No.
1910.16-6. Based upon the evidence presented, the trier of
fact may enter an order against either party without regard
to which party initiated the action. If the parties share
custody equally and the support calculation results in the
obligee receiving a larger share of the parties’ combined
income, then the court shall adjust the support obligation so
that the combined monthly net income is allocated equally
between the two households. In those cases, spousal
support or alimony pendente lite shall not be awarded.
* * *
Pa.R.C.P. 1910.16-4(a)(1)-(2), (c)(1)-(2) (effective to December 31, 2021)
(emphasis added) (formulas set forth in Rule omitted).
Additionally, Pennsylvania Rule of Civil Procedure 1910.16-2 provides as
follows:
Rule 1910.16-2. Support Guidelines. Calculation of
Monthly Net Income
* * *
(b) Treatment of Public Assistance, SSI Benefits,
Social Security Payments to a Child Due to a Parent’s
Death, Disability or Retirement and Foster Care
Payments.
* * *
(2) Child’s Social Security Derivative Benefits.
(i) If a child is receiving Social Security derivative
benefits due to a parent’s retirement or disability:
(A) The trier-of-fact shall determine the basic child
support amount as follows:
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(I) add the child’s benefit to the monthly net income
of the party who receives the child’s benefit;
(II) calculate the parties’ combined monthly net
income, including the child’s benefit;
(III) determine the basic child support amount set forth
in the Pa.R.C.P. No. 1910.16-3 schedule; and
(IV) apportion the basic child support amount between
the parties based on the party’s percentage of the combined
monthly net income.
(B) If the obligee receives the child’s benefit, the trier-
of-fact shall deduct the child’s benefit from the basic support
obligation of the party whose retirement or disability created
the child’s benefit.
(C) If the obligor receives the child’s benefit, the trier-
of-fact shall not deduct the child’s benefit from the obligor’s
basic support obligation, even if the obligor’s retirement or
disability created the child’s benefit. To illustrate for the
parties the impact of the obligor receiving the benefit
instead of the obligee, the domestic relations section shall
provide the parties with two calculations theoretically
assigning the benefit to each household.
(D) The trier-of-fact shall allocate the additional
expenses in Pa.R.C.P. No. 1910.16-6 based on the parties’
monthly net incomes without considering the child’s benefit.
(E) In equally shared custody cases, the party
with the higher monthly net income, excluding the
child’s benefit, is the obligor.
* * *
Pa.R.C.P. 1910.16-2(b)(2)(i) (effective to December 31, 2021) (emphasis
added).
Instantly, the trial court initially noted that the formula set forth in Rule
1910.16-4(a)(2) Part II(11)(a)-(f) (detailing formula for substantial or shared
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physical custody adjustment, if applicable, and referencing subdivision (c) of
Rule), was inapplicable to this case because Mother filed the child support
complaint on October 11, 2019, which is after January 1, 2019. (See Trial
Court Opinion, filed June 8, 2021, at 2). The court went on to state: “It is
completely irrelevant that the parties were previously involved in a child
support action prior to January 1, 2019 because that action was dismissed
and the case was closed, by agreement, through the August 16, 2019,
Consent Order of Court.” (Id. at 2-3) (footnote omitted).
We see no error in the trial court’s application of Rule 1910.16-4. See
C.H.Z., supra. The Rule plainly states: “The formula in Parts I through IV is
for a modification of an order entered before January 1, 2019[.]” Pa.R.C.P.
1910.16-4(a)(2) (emphasis added). Thus, we agree with the trial court that
the formula Father sought to apply in this case set forth in Part II(11)(a)-(f)
was not relevant here, where the support order at issue would be entered
after January 1, 2019.
The trial court explained that the hearing officer utilized Rule 1910.16-
2(b) to calculate the child support obligation where Child was receiving
support benefits due to a parent’s disability, and “followed the step-by-step
calculations in determining [Father’s] child support obligation meticulously.”
(Trial Court Opinion at 3). The court noted:
And, although [Father] would argue that an additional step
must be added to take into consideration the parties’ shared
physical custody schedule [and apply a reduction as a
result], the Rule simply does not include such a step.
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Moreover, this Rule is not silent on the issue of shared
physical custody because the Rule goes on to state: “(E) In
equally shared custody cases, the party with the higher
monthly net income, excluding the child’s benefit is the
obligor.” Therefore, the [c]ourt can reliably presume that if
the Legislature had intended a further deviation for shared
physical custody cases, [it] would have included an
additional step in the support calculation in that subsection.
(Id. at 3-4). We see no error in the trial court’s analysis of Rule 1910.16-2.
See C.H.Z., supra. As the trial court correctly observed, Rule 1910.16-
2(b)(2)(i)(E) addresses how to calculate the child support obligation in an
equally shared custody case involving a child who receives social security
derivative benefits, and the Rule does not mention an additional reduction or
deviation that would apply to Father under those circumstances. See
Pa.R.C.P. 1910.16-2(b)(2)(i)(E).
Regarding Father’s alternative arguments that the relevant rules of civil
procedure are unconstitutional as applied to him, Mother notes that “Father
presents no evidence as to why the Pennsylvania Legislature’s decision to
exclude from downward deviation the receipt of [Social Security Disability]
SSD benefits is not rationally related to a legitimate government interest.”
(Mother’s Brief at 11-12). Mother further claims: “Father’s blanket claims that
no rational basis exists [are] not sufficient.” (Id. at 12). We agree with
Mother that Father’s bald assertions of no rational basis are insufficient to
warrant appellate relief. See Dockery v. Thomas Jefferson University
Hospitals, Inc., 253 A.3d 716, 722 (Pa.Super. 2021) (holding appellant did
not properly mount constitutional attack against certain Rule of Civil
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Procedure; notably, appellant failed to consider myriad of other reasons that
Supreme Court may have considered when it promulgated rule; “And we may
not pursue this inquiry for her, lest we risk developing the constitutional claim
on her behalf”; in light of undeveloped brief, we cannot say with any certainty
whether challenged rule violates or comports with Equal Protection Clauses;
thus, appellant’s constitutional challenge affords her no relief).2
In his second issue, Father argues the trial court did not properly
consider the evidence of Mother’s earning capacity when the court imputed an
income to Mother of only $10.00/hour at 20 hours per week. Father asserts
the evidence shows that Mother has 25 years of experience in the restaurant
industry and Mother failed to make a good faith effort to seek employment.
Father claims that the parties have had shared custody of Child since 2013,
and Child has no special needs requiring strenuous or time-consuming care
by Mother. Father suggests that he or Maternal Grandmother could care for
Child while Mother is working. Father submits that Mother is capable of
____________________________________________
2 Further, to the extent Father argues the rules of civil procedure are facially
unconstitutional (as opposed to as applied in this case), then any such
challenge is waived, where nothing in the record indicates that Father notified
the Attorney General of such an attack pursuant to Pa.R.C.P. 235 and
Pa.R.A.P. 521. See Fotopoulos v. Fotopoulos, 185 A.3d 1047 (Pa.Super.
2018) (explaining that where party purports to challenge constitutionality of
rule or statute, notice must be given to Office of Attorney General of
Commonwealth; where there is no indication such notice was given,
constitutionality claim is waived). Compare Kepple v. Fairman Drilling
Co., 532 Pa. 304, 313 n.3, 615 A.2d 1298, 1303 n.3 (1992) (noting that notice
to Attorney General is not required if appellant’s argument is confined only to
application and not attack on constitutionality of statute on its face).
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earning $15.00/hour at 40 hours per week in the food service industry, and
the court failed to impute this higher earning capacity to Mother. We disagree.
This Court has explained that “[e]arning capacity is defined as the
amount that a person realistically could earn under the circumstances,
considering [her] age, health, mental and physical condition, training, and
earnings history.” Woskob v. Woskob, 843 A.2d 1247, 1251 (Pa.Super.
2004). See also Haselrig v. Haselrig, 840 A.2d 338 (Pa.Super. 2003)
(stating earning capacity is not amount which person could theoretically earn
but amount which person could realistically earn under relevant
circumstances).
Instantly, the trial court explained:
The Hearing Officer took into consideration [Mother’s] age,
health and job history when imputing her net monthly
income. [Mother] is 55 years old and resides with her
mother. [Mother] graduated high school in 1983 and
obtained a medical assistant certification that, over the
years, she did not renew. [Mother] worked at McDonalds
for twenty-five years prior to the birth of the parties’ child
and worked minimally for several years thereafter.
[Mother] is currently not employed. The Hearing Officer
found [Mother] credible and the imputation of [Mother’s]
current income is reasonable and supported by the
evidence. [Father] failed to support his argument and
presented no evidence that at any time has [Mother] ever
been found to have higher actual earnings or a higher
earning capacity.
(Trial Court Opinion at 6).
Our review of the record confirms that the hearing officer and trial court
considered the relevant factors when assigning Mother an earning capacity.
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See Woskob, supra. Although Father claims the court should have imputed
a $15.00/hour, 40 hour/week earning capacity to Mother, he presented no
data to support those figures. In the absence of any evidence showing Mother
could realistically (not theoretically) earn more than $10.00/hour, 20
hours/week, we see no abuse of discretion with the court’s analysis. See
C.H.Z., supra. See also Haselrig, supra.In his remaining issues combined, Father argues the court failed to
consider the “clear and convincing” evidence of Mother’s pending receipt of
Child’s Social Security derivative benefits in the amount of $7,173.33. Father
insists that a letter from the Social Security Administration demonstrated this
amount was owed to Mother, but Mother made no effort to inquire about its
whereabouts. Father asserts that the court should have utilized this amount
in providing a downward deviation or other offset to Father pursuant to the
deviation factor analysis in Rule 1910.16-5. Additionally, Father maintains
the court failed to consider a substantial overpayment of Child’s Social
Security Income benefits to Mother, wherein Mother received $32,999.00 in
Child’s benefits and then received an offset of that same amount from the full
amount payable in Social Security Disability benefits. Father contends this
significant monetary asset is properly considered in analyzing Mother’s assets
and providing a downward deviation to Father under Rule 1910.16-5.
Further, Father insists the court failed to apply a deviation to Father
where the uncontroverted evidence shows that Maternal Grandmother, with
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whom Mother resides, has claimed Child on her tax returns for several years
and has therefore received the benefit of the child tax credit and dependent
pandemic stimulus payments. Father claims this consistent flow of income to
Mother’s household should be considered in assessing a downward deviation
to Father. Under these circumstances, Father submits that the support order
was unjust and/or inappropriate, and this Court must grant appropriate relief.
We disagree.
Pennsylvania Rule of Civil Procedure 1910.16-5 provides:
Rule 1910.16-5. Support Guidelines. Deviation
(a) Deviation. If the amount of support deviates from the
amount of support determined by the guidelines, the trier of
fact shall specify, in writing or on the record, the guideline
amount of support, and the reasons for, and findings of fact
justifying, the amount of the deviation.
* * *
(b) Factors. In deciding whether to deviate from the
amount of support determined by the guidelines, the trier
or fact shall consider:
(1) unusual needs and unusual fixed obligations;
(2) a party’s other support obligations;
(3) other household income;
(4) ages of the children;
(5) the relative assets and liabilities of the parties;
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their children;
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(8) in a spousal support or alimony pendente lite case, the
duration of the marriage from the date of marriage to the
date of final separation; and
(9) other relevant and appropriate factors, including the
best interests of the child or children.
Pa.R.C.P. 1910.16-5 (effective until December 31, 2021).
Instantly, the trial court addressed these claims as follows:
[Father] argues that the Hearing Officer erred in failing to
consider the possibility that [Mother] “might” have been
entitled to receive Social Security benefits in the amount of
$7,173.33 in August 2019. However, [Father] merely
speculated that [Mother] might have been entitled to
receive this sum of money, and never proved that [Mother],
in fact, did receive any lump sum payment in this amount.
The [c]ourt simply cannot justify addressing income that
has never been proven to have been received by [Mother].
Furthermore, the [c]ourt does not agree with [Father] that
somehow the burden shifts to [Mother] having to prove she
did NOT get the money when she testified under oath…that
she did not receive the money. Lastly, the [c]ourt notes
that [Father] does not argue that [Mother] received this
money during the pendency of this action, but prior to this
support action being filed in 2019.
* * *
[Father] asks the [c]ourt to address [Mother’s] receipt of
SSI for the minor child dating as far back as possibly the
child’s birth and for a time period prior to the initiation of
the current support action. [Father] failed to cite any legal
justification for the [c]ourt to consider this factor, as this
case commenced in 2019, it is irrelevant.
* * *
[Father also] failed to provide any legal justification to allow
the [c]ourt to consider any benefits the maternal
grandmother may or may not receive as a result of claiming
the minor child [for tax purposes]. Moreover, there was no
evidence, whatsoever, of the exact amount of any alleged
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benefit received by maternal grandmother, if any. Again,
the [c]ourt simply cannot justify addressing income that has
never been proven to have been received by [Mother].
* * *
To justify [Father’s] argument that he should have no child
support obligation, he references the above lump sums of
money that were never proven to be received by [Mother],
his belief that [Mother’s] income was inaccurately imputed,
and the parties’ 50/50 shared physical custody schedule.
Based on the previous discussion wherein [Father’s]
arguments failed; hereto, [Father’s] arguments must fail.
The [c]ourt does not find the current child support obligation
to be unjust or inappropriate. Rather, due to the special
needs of the minor child, the [c]ourt finds the order to be
just and fair.
The [c]ourt notes that it would appear that the crux of
[Father’s] overall position is that because the parties share
legal and physical custody equally, that since [Father]
receives Social Security Disability income, and that because
the minor child is entitled to a derivative benefit based on
[Father’s] disability, he should not have to pay child
support. This position is simply not supported by the child
support guidelines as indicated by the above analysis. And
although the guidelines do not specially address a scenario
where the minor child’s derivative benefit is distributed by a
3rd party payee equally to both parents, the guidelines
provide sufficient guidance in calculating [Father’s] child
support obligation.
(Trial Court Opinion at 6-9). We see no reason to disrupt the court’s analysis.
Although Father contends that he was entitled to a downward support
deviation where Mother had “other income in the household” by way of
Maternal Grandmother, and additional “assets” in the form of payments Father
alleged she had received (see Pa.R.C.P. 1910.16-5(b)(3) and (5)), we see no
abuse of discretion in the trial court’s decision not to apply any such deviation,
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based on the reasons stated in the court’s opinion. See C.H.Z., supra. To
the extent Father suggests Mother’s testimony before the hearing officer was
incredible, “we must remain cognizant that a hearing officer’s credibility
determination must be accorded great weight.” Kraisinger v. Kraisinger,
928 A.2d 333, 344 (Pa.Super. 2007). Under the circumstances of this case,
we agree with the trial court that Father’s child support obligation of
$100.00/month was not unjust or inappropriate. See Pa.R.C.P. 1910.16-
1(d)(1) (stating that if trier-of-fact determines that party has duty to pay
support, there is rebuttable presumption that guideline-calculated support
amount is correct support amount; presumption is rebutted only if trier-of-
fact concludes in written findings or states on record that guideline support
amount is unjust or inappropriate). Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2022
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