# Petit, N. v. Petit, M. > Superior Court of Pennsylvania · August 21, 2024 URL: https://www.frixlaw.com/law-library/cases/10513982 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** August 21, 2024 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Stevens, P.J.E. - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10513982 ## How later opinions describe it (automated extraction) - holding an asset awarded in equitable distribution may not be included in an individual’s income for purposes of calculating support -7- J-A12043-24 payments ## Opinion text J-A12043-24 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 NANCY PETIT : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : MICHEL PETIT : No. 1577 EDA 2023 Appeal from the Order Entered May 25, 2023 In the Court of Common Pleas of Delaware County Domestic Relations at No(s): 2016-00593, PACSES; 821115830 BEFORE: PANELLA, P.J.E., KING, J., and STEVENS, P.J.E. * MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 21, 2024 Plaintiff/Appellant Nancy Petit (“Mother”) appeals from the May 25, 2023, order entered in the Court of Common Pleas of Delaware County granting in part and denying in part her Motion for Reconsideration and Modification of the trial court’s April 26, 2023, child support and Alimony Pendente Lite (“APL”) order. For reasons that follow, we vacate and remand with instructions that the trial court recalculate child support and reconsider Father’s ability to satisfy a portion of his support arrearages in a lump sum payment. Appended to this decision is the trial court’s Pa.R.A.P. 1925(a) Opinion dated September 26, 2023, which sets forth a detailed and comprehensive factual and procedural history, with references to the many evidentiary ____________________________________________ * Former Justice specially assigned to the Superior Court. J-A12043-24 hearings held during the relevant period, such that we need only provide a summary thereof. Mother and Defendant/Appellee Michel Petit (“Father”) were married in 2001, separated in 2015, and divorced in 2019. They are the biological parents of one minor child, born in 2013, who currently lives with Mother and her maternal grandmother in Delaware County, Pennsylvania. The record established that Father has joint legal custody of his son, but he has not seen or contacted him since 2018. N.T., 7/25/22, at 90-92. Father is remarried and currently lives in Texas, where he is employed as a sales representative for a fracking sand supplier, Smart Sand, Inc., a publicly traded company doing business with oil and gas companies. From tax years 2016 to 2021, Appellant’s earned income from Smart Sand fluctuated from a low of $123,349.37 in 2021 to a high of $294,093.41 in 2019, with a six-year average of approximately $196,790.00. N.T. at 46-48. In addition to his regular W-2 earnings, Father’s compensation package included receipt of non-qualified Smart Sand restricted stock, which was reflected in his regular statement of earnings with income taxes withheld. N.T. at 107. As described, infra, the stock was restricted when issued, but pursuant to restrictive covenant agreement it became fully unrestricted within several years and was then capable of liquidation by Father. Id. Prior to Father’s employment with Smart Sand, he played 17 seasons— from 1982 to 1998—as a professional hockey player in the National Hockey League (“NHL”). N.T., 12/3/20, at 8. Injuries he sustained during his playing years, however, made him eligible to file a workers’ compensation claim and -2- J-A12043-24 to join a class-action concussion lawsuit against the NHL. He had retired from the NHL by the time he married Mother in 2001. Since the birth of the parties’ minor son, Mother has been a stay-at- home parent and serves as her son’s sole caregiver. N.T., 3/4/21, at 31. Mother has not been employed in years, and she pays $1,500.00 in monthly rent to live with her son in the lower level of her maternal grandmother’s home. N.T., 7/25/22, at 188. On March 11, 2016, Mother filed a complaint for child support and APL against Father. On August 1, 2016, the parties appeared before a Hearing Officer, who issued a recommended order requiring Father to pay child support, APL, and the mortgage of the marital home for a total of $4,755.94 per month, effective March 11, 2016. TCO, 9/26/23, at 2. The Hearing Officer also found Father’s income to be $9,326 per month and Mother’s income to be $0. The Hearing Officer ordered Father to pay, inter alia, unreimbursed medical expenses and medical insurance. Id. On August 16, 2016, Father filed a counseled notice of demand for a hearing de novo. On February 17, 2017, the trial court issued a Final Support Order in which it imputed an annual earning capacity for Mother of $24,900.00 and, pursuant to the parties’ agreement, imputed a net monthly income of $8,395.75 to Father based on his Smart Sand income. Id. The court set Father’s child support obligation according to child support guidelines. Id. On May 12, 2017, the trial court modified the support order in part upon consideration of Father’s Amended Petition for Reconsideration. Id. at 3. -3- J-A12043-24 The current custody order was entered on December 11, 2018, based on a Hearing Officer’s recommendation. Among other things, Mother was awarded primary physical custody subject to Father’s supervised custodial visit with child at scheduled intervals. Both parents were awarded joint legal custody. On January 24, 2019, the parties entered into a property settlement agreement, upon which the trial court entered its February 28, 2019, equitable distribution order. The parties Divorce Decree was entered on April 2, 2019. Id. at 4-5. As catalogued in the trial court opinion, the ensuing five years have involved numerous petitions for special relief and motions for modification of child support. TCO at 5-8. Among the issues raised and addressed at the corresponding proceedings were whether Father’s workers’ compensation award, concussion settlement, and other assets may be considered income imputed to Father if they were contemplated in the equitable distribution property settlement agreement, and whether Father was liable to pay retroactive child support for alleged misrepresentations about his income, when the parties had stipulated to his income. TCO at 7. After conducting several de novo hearings and considering the parties’ submitted Findings of Fact and Conclusions of Law, the trial court issued its decision and Final Support Order of January 13, 2023, in which it assessed significant arrearages based on its finding that Father had misrepresented his income at prior hearings. However, the court determined that it lacked any basis upon which to seize property pursuant to 23 Pa.C.S. § 3703(2) -4- J-A12043-24 (permitting the “taking and seizure of goods and chattel” to pay arrearages) and §4352(d.1) ( “overdue support obligations” may constitute a lien against real property) and order Father to pay a lump sum towards his arrears because it found Mother had not presented admissible evidence to establish the value of Father’s assets which could be seized for such purposes. Once the value of such assets is obtained, the trial court indicated, Mother may take further enforcement action through Domestic Relations to satisfy the arrearages. Mother filed a motion for reconsideration, to which the trial court granted reconsideration in part and denied in part through its orders of April 26, 2023, and May 25, 2023, respectively. This timely appeal follows. Mother presents the following three questions for this Court’s consideration: 1. Did the trial court err as a matter of law or abuse its discretion in computing Father’s income for purposes of awarding child support where it failed to include Father’s workers’ compensation award, funds received from the NHL concussion litigation settlement, and the proceeds from a 401(k) withdrawal, where the record reveals that those funds were pre-marital or post-marital assets that were not included in the equitable distribution of the marital estate? 2. Did the trial court err as a matter of law or abuse its discretion in failing to include in its child support calculations the value of shares of stock in Father’s employer, Smart Sand, a publicly owned company, where the record revealed that Father was paid in stock in lieu of salary to reduce his income available for child support? 3. Did the trial court abuse its discretion, when, after finding that Father had intentionally misrepresented his income and willfully violated a non-disbursement order, it failed to award Mother a lump-sum payment of child support and attorneys’ -5- J-A12043-24 fees from Father’s $158,400 workers compensation award or other assets but instead permitted Father to pay his $102,501 in child support, APL, and attorneys’ fees out over many years? Brief for Appellant, at 15-16. Our standard of review is as follows: When evaluating a support order, this Court may only reverse the trial court's determination where the order cannot be sustained on any valid ground. We will not interfere with the broad discretion afforded the trial court absent an abuse of the discretion or insufficient evidence to sustain the support order. An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused. 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. M.E.W. v. W.L.W., 240 A.3d 626, 634 (Pa. Super. 2020) (citation omitted). “[W]ith regard to issues of credibility and weight of the evidence, this Court must defer to the trial judge who presided over the proceedings and thus viewed the witnesses first hand. When the trial court sits as fact finder, the weight to be assigned the testimony of the witnesses is within its exclusive province ... and the court is free to choose to believe all, part, or none of the evidence presented.” Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009) (citations and internal quotation marks omitted), appeal denied, 995 A.2d 354 (Pa. 2010). Reich v. Reich, 315 A.3d 89 (Pa. Super. 2024). After careful review of the record, party briefs, the applicable law, we agree with the trial court that Mother’s first claim on appeal is without merit. In reaching this conclusion, we rely on the trial court’s Rule 1925(a) opinion, which provides a thorough review of the first issue and determines it is without merit. See TCO, 9/26/23, at 19-23 (Issue #5). -6- J-A12043-24 Specifically, the trial court correctly observed that the parties’ counseled property settlement agreement of January 24, 2019, was reduced to writing and formed the basis for the trial court’s equitable distribution order of February 28, 2019. The equitable distribution order provided, inter alia, that Mother receive the marital home valued at $699,000.00, after buying out Father’s $50,000.00 interest therein, assume responsibility for the mortgage, taxes, utilities, and other expenses, and receive 25% of the increase in the value of Father’s NHL pension. To Father, the equitable distribution order awarded him his full interest in the Sun Life Whole Insurance policy with responsibility for the loan balance, and “all right, title and interest” to his then- pending State of California worker’s compensation claim, to his NHL pension as his sole and exclusive property, and to any settlement verdict, judgment or other disposition of funds awarded in the then-pending NHL class action concussion lawsuit. Therefore, because Father’s interests in question formed part of the consideration offered in the negotiations that led to an equitable distribution agreement between the parties, the trial court properly deemed those interests marital assets in its equitable distribution award and concluded, therefore, that they could not also be considered sources of “income” for child support purposes pursuant to 23 Pa.C.S. § 4302 lest the trial court engage in “double counting” of such assets. See Hess v. Hess, 212 A.3d 520, 524 (Pa. Super. 2019) (holding an asset awarded in equitable distribution may not be included in an individual’s income for purposes of calculating support -7- J-A12043-24 payments). Because the trial court aptly identified controlling authority and applied it to the present facts, we discern no basis on which to grant Mother relief under her first claim. In Mother’s second issue, she maintains the trial court erroneously failed to impute to Father as income available for child support his employer’s stock paid to him as compensation in lieu of cash wages.1 At the April 2022 child support hearing, Father admitted he receives Smart Sand stock “every year” as compensation, N.T., 4/28/22, at 63, 64. He explained that part of his gross compensation in each of calendar year 2016, 2017, 2018, and 2019 typically consisted of a payment of 2000 shares of Smart Sand stock, N.T. at 62. He acknowledged the stocks were fully “restricted” at first but, by the time of the April 2022 hearing, all were “unrestricted.” N.T. at 62, 64. The trial court understood Father’s testimony to describe a stock option compensation arrangement, whereby part of his compensation consisted of stocks that vested incrementally over time, at which point he acquired the right to exercise the option to buy or sell.2 The trial court determined, ____________________________________________ 1 Father testified at the April 28, 2022, hearing that “in every year” Smart Sand compensates him with a certain number of stocks, see infra, and he explained that Smart Sand sells the portion of the stock to acquire proceeds necessary to pay his withholding taxes and awards him the remaining 1,000 to 1,300 shares of the restricted stock, as net pay. N.T., 4/28/22, at 59, 64. 2 The trial court understood Father’s testimony to describe a “stock option” compensation arrangement, whereby part of his compensation package consisted of restricted stocks that became “unrestricted” or vested gradually over a predetermined time known as a vesting period. To the extent the trial (Footnote Continued Next Page) -8- J-A12043-24 however, that Mother failed to produce evidence of either the stock options’ values at the time of the hearing or of Father’s ability to readily avail himself of their cash values to address his support obligations. We disagree. Father, himself, testified that Smart Sand stock was, at the time of the April 2022 hearing, “trading at $3.00, and in those days [when he was initially compensated with the stock] it was $18, $19, $20 a share.” N.T. at 65. To this testimony, Mother’s counsel asked Father, “[D]o you agree it’s around $3.86 a share currently?” Father replied, “Do I agree? I can look at it . . . or ____________________________________________ court understood the stock compensation award to confer to Father the option to sell stock that had reached unrestricted status and to receive cash payment equal to its then-current value, we concur with its understanding. To the extent, however, that the trial court also concluded Father was required to exercise an option to buy the stock already awarded to him as compensation, see Trial Court “Findings of Fact and Conclusions of Law,” 1/13/23, at p. 43, the record belies this conclusion. Documentary evidence and Father’s testimony confirm the stock compensation arrangement between Smart Sand and Father was a “Restricted Stock Award” governed by a “Restrictive Covenant Agreement” in which the Smart Sand employee receives an award of restricted stock that vests or becomes unrestricted in one-quarter increments annually over four years. Under the terms of the Agreement, and consistent with Father’s own testimony, all of Father’s stock received from 2016 to 2019 had become fully unrestricted and available to him to cash out at his sole discretion—and without any further expense—by the time of the 2022 hearing, as Smart Sand already withheld income taxes applicable to the stocks prior to awarding them to Father as compensation. See Restricted Stock Award Agreement; N.T. at 59. The only option left for Father to exercise was whether and when to sell his unrestricted stock to access its value. -9- J-A12043-24 I can say, yeah, I agree.” Id.3 He also admitted, after initially offering a denial, that he had cashed out some of his Smart Sand stock in the past, N.T. at 63.4 Regardless of the diminution in the stocks’ trading values over the relevant period5, the record supports the conclusion that at the time of the hearing Father possessed approximately 4,800 post-withholding, unrestricted shares of company stock which, if sold at about $3.86 per share on the day of his testimony, would have held a net value of $18,528.00 in the aggregate. In MacKinley v. Messerschmidt, 814 A.2d 680 (Pa. Super. 2002), this Court held that vested stock options constitute income for child support ____________________________________________ 3 Father testified at the April 28, 2022, hearing that the stock had lost much of its value during the relevant time, but he did not deny Mother’s counsel’s assertion during examination that the stock had a then-present value of $3.86 per share. He also admitted, after initially offering a denial, that he had cashed out some of his Smart Sand stock in the past, N.T., 4/28/22, at 63, and that all his stock has reached unrestricted status. Id. 4 The Restricted Stock Award Agreement further indicates that the four-year phase-in scheme by which an employee stock becomes increasingly unrestricted as long as one remains an employee is an incentive/award for remaining in the employ of Smart Sand. Under this record, which establishes that Father received this stock each year from 2016 through 2019, and remained an employee of Smart Sand at the time of the most recent hearing on April 10, 2023, it must be concluded that at the present time, all stocks issued to Father prior to July 2020 are fully unrestricted under the Restricted Stock Award Agreement’s four-year phase-in scheme, and any other stocks awarded in the same manner in 2021, 2022, and 2023 are partially unrestricted. 5 The trial court took note of Father’s tax returns showing he experienced a net loss in the value of his stocks from 2016-2020, a fact that was acknowledged by both parties during the April 2022 hearing. - 10 - J-A12043-24 purposes regardless of when a parent elects to exercise them. The dispositive occasion in this context, MacKinley explains, is the moment a parent may access a stock’s value, as the “dominant interest of a child’s immediate needs, the recognition that children should not be made to wait for support, and the possibility of a parent deferring income until they choose to avail themselves of it” militate in favor of preventing such unilateral, voluntary, dilatory parental conduct aimed at reducing child support obligations. Id. at 683. See Hanrahan v. Bakker, 186 A.3d 958, 980 (Pa. 2018) (Applying policy considerations identified in MacKinley to reverse an order that awarded high- income parent a downward deviation in child support obligation after parent made considerable contributions to a trust benefitting children; money available to an obligor should be made available to children for their immediate needs). The same rationale applies here to support the conclusion that Father’s employment compensation in the form of restricted shares of stock—a method of compensation by which, Mother contends, Father sought to avoid child support obligations—constituted income for child support purposes once the shares became unrestricted and, thus, accessible to Father. Contrary to the trial court’s opinion that Mother presented no evidence of the stocks’ value, the record shows Mother established through both testimonial and documentary evidence that Father’s Smart Sand stock awards had a discernable present value readily accessible to Father to apply towards his court-ordered obligations to his son. Accordingly, we conclude the trial court - 11 - J-A12043-24 erred in excluding Father’s Smart Sand stock awards from its income calculations for purposes of setting Father’s support obligations. Because adding the aggregate value of all Father’s unrestricted Smart Sand stocks will increase his imputed income to some degree, we remand this matter for proceedings wherein the trial court shall recalculate Father’s income for purposes of determining Father’s child support and APL obligations. Furthermore, in light of Father’s access to unrestricted shares of stock, the trial court shall reconsider Mother’s third issue pertaining to Father’s ability to pay a portion of his $117,432.76 arrearages in a lump sum. In making the lump sum payment determination, the trial court shall consider not only the availability of his unrestricted stocks but also the unrefuted evidence that Father took no precautions for his son’s sake to account for predictable fluctuations in his annual income by saving in high-income years and cashing out his stocks when they began to vest at higher prices several years ago and applying the proceeds to child support. Order vacated. Case remanded for further proceedings consistent with this decision. Jurisdiction relinquished. Date: 8/21/2024 - 12 - Circulated 07/30/2024 07:53 PM TN, THE COU1tTOF:COMMON PLEAS ()FDELAWARE COUNTY;;PENNSYLANIA FAMILY EiND JUVENILE NANCY PETIT , SUPERlOR'CQURT No. , 1577 EDA.2:023 App'eltant V. FACS.ES NO 82111'583A' DOCKET NO. 2016-Q0593 MICHEL PETIT, Appetlee IN SUPPORT Virginia Hinrichs McMichael, Esquire;Attorney for Plaintiff-Appellant Michel Petit, Pro :Se Defendant=Appellee OPINION KI:El1„J Filed: September 26, ".2023 L PRELIMINARY STATEMENT Tn tlli5 C?piriion ,piirsuan"t to Pennsylvania Rule of A}ipcllate-pr6c6duie 1925(4);;the'tnai. ≥eour her„el yineorporate5;i sEineliiigs of Faet;and Con us ons of'Lavv-ancl final Support Ordex issued on.January 1.3, 2023, its Reconsideration decis''lon issued on,Apri1.26,.2023 and its second Reconsideration decision issued on May 25, ;2023. `l he tmirt. attaches,fheselepiAons and orders' to this Upiriion and relies.,vn them to: explain its rationale for its decisions:; Below ,please fired the °court's analyses of the error'`s raised tx.PlaintiffNancy Petit's "M., othbr" . Rule 1925 •. b• Concise Statement ofErrors seriatim Fdr the rcasons stated:below,_the trial court, contends that.its,decisions fail to.constitute an abuse of discretion or:an.error of law and,respectfully requests that its decisions be affirmed. II. PROCEDURAL: HISTORY the trial court'heretiy reproduces its Procedural' F-listory ,within its Findings of Fact.as. contained' ! its January 13, 2023 Finding's of Fact and Conclusions . of Law at-pp, J-1.3 (",January °1:3,;2023 Decision"):; Plaintiff N4ncyN it"(`Mothe ' tit'V•ife".)'and Defendani•Michel Petit (".Father" or "Husband')' are the biological parents of the minor child, B:P., , DOB 2/22/13 ("child";or "minor child".): Plaintiff."Nancy Petit i nitial] " filed heir. complaints for child support- and ;alimony . pendente life-('`APL"), on March- 1'l, 2U'1`6.'Domestic Relations'Case Noteleport, 3/17/16=at 56, The parties appeared before Hearing;Q£ficerpohnelly on August 1,1016 who issued a- recommended-, order requiring Defendant Michel Petitto pay child support; APL:.and the-mortgage on the marital home for atotal of $4,755:94 per,month, the effective.date of the-order:was March_l 1, 2016. Domestic ;Relations IDocket:History Report at 25 The „Hearing Officer'aI , 66"found Defendant s''i'ncome to be $9;32 per month. and Plaintiff s zero. Her'Order included appartionnient of unre, bursed medical expen' ses,..various credits' gitd tbAt :Defendant was 4aprovide medical. 'irisu'rance ' Icl.. ;On August r6,"2016; Defendant filed -a-notice 'ofdemai id for hearing de novo through, his c ounsels- Frank urso;_Esquire. Domestic Relatibos:IDocket Histi ry Report at 24. On Febru " __ 17. 2917;HonoraEile bomenic Pileggi issued' a"Fina1'Support; .Order, utter taking this matter under advise ncht on December 12, 20. 16. Exlubit'P= 15j10 1 ound the t ' ollowirig::: a:, .11e:mputec an earning capacity ' forMother d 14;900 forua net monthl .y tParti'es•aree• r g that Father's : 1•794AZ•Id>;at employment, at that tithe; ;yielded anet monthly income of $8,395.75 The parties also stipulated'that Father worked in'sales for"Smart'Sand, Inc Id. atI,110 c„ Pursuant to child support- guidelines ifs,effect at the" time, Judge Pileggi found-that: basic child support for one chiIdwith, anet monthly household incorrie of $10,189:77 is $°1,410.0,0'.per month: Father's share-4the.net.morithly household income vas 82% while Mother's. was 18% As aresult,.,Bather's basic,monthly child support obligation was $1,1.56. 20.',-Id,,at 7, ¶211. 'fudge Pilegga fiirther analyzed Niother's.request for an upward; custody deviation and found n, ,her'favor in light of Father's failure to avail himself of court-ordered "parents ' gtithe.. He awarded a10 uI'w ard̀custody deviatioh' in the amount of,, Sl:l 5.62. Id ," at -8, x(29'. e. ;Next; JudgePileggi tackled daycare expenses as =required when imputing, income. l=le' found that Mother's yearly imputed cost of - ; dayeare at $250 perweek would'8be`$13,000 2% annually or`$1,083.33 per month. As Father's-share is., his responsibility would be $888.33.permonth. Id: at 1:0-11,130. f judge Pileggi then. found.that Father' shealth - insurance cosfs'were 268,66 per month. - Mother's share was 4 0$/u, :or $48;36, which Judge Pileggi subtracted : from Father's support obligation:ld at 1`l, '•31,. g.. He'thtt `calculated Mothe6 alimony pendenfe i* away"d as 1$1 , ,.346- .9 8_Id: at l, ,! ;: li. He awarded Mother an upward mortgage devtati6n;,Based on the parties' monthly mortgage, of.$2,011 ZT; ;in the arnount.of I& ; at 1'1 12,'" 33 , Basedon.the above findings, `he concluded that Father' s:monthly, alimony pendente, lite and; child support obligations towardsM- other were $3,845':06 plus 10% on arrears, $3:84.00' per month; fora total of $14;229:06. Icl, at 14-T6,`¶ 36;. a: Last ;he ordered Wther`be responsible for the -first WO of unreimbursed,medical`expenses for Mother, and.tninor child, the, excess to be split 5,0/50;: He failed'to`meution`.any,award of extra- curricular expenses. ld..at. 14-15; !n37-38. Upan'consideratian Of Defendant's'•Amended !Petition`for Reconsideration; Plaintiff's AAnswer thereto and ahearin gon May 12 201.7, Judge Pile9V `modified his 1*ebruary 17, XV (Order in part: LLExhibit Y-7:: He tourid the, following a;. He,'affiraied his'prior decisian'to award an,upward ' usto''y deviation of TON: Id. at 3;1, .2.j. b; : He affirtiied his decision. to. award Mother reasonable 'mpufed; childcare costs,;atthe previous amount awarded. Id. at 4, 1 3, ee, He modifed the March 3.1,'2020 decision to reflectMather's entitlement to acliild.and`tax dependent care credit in the ariiount of$900 Id.,; d.: °He affirmed Father•'s:agreed het monthly income as .$8,395 75. Id, 'at 4,115. e.. ;Fie found that 'Mother's gross imputed yearly income at the same, ainount,.$24,960' but deducted childcare taX credit, Medicare'and Pennsylyania income tax and Social Security taxes to yield an annual net income of '$23,284.29a with ,amonthly net of $ 1,940:36: He found that Mosher had norfederal'tax liability: Id at 5-6,' 5; °f Based on. hismodified;calculations`for Mother's income , , he'found 'that.net m6nt' hly;'total household income was $ 10;336`l ),, resulting .ih.a monthly aw'ard.of$ l°,423.00 in child.:support.'fof,bne'child, Father was. apportioned 81%0 of the net household income while. Mather, " 19°,•o Idat6 ¶ 9:. g. He found.tlie upward custody devr'afiori to be.$LI 00•per n6htfi. Id. at 1; .¶ 10, b Mother's childcare,.expenses were hot iiaodif ed_ but-Judge P,ildggi, subtracted the $300 childcare fax credit, resulting in $ 1-2,10Q from $13,000 as stated in the,.Fe>aruary Order, Id. at 8;'x,11 .The net. monthly'.ch tdcare, was modified to be $1,083.33"per month. When. multiplied,; y'81 %, Faiher's.sliare is 01: 4net per month..Id at= ¶'ll. Based on ilie Court's 6odification:af Mother'0heome;-the Court- adjusted ' the health insurance accordingly; Her new,contribution`Was $ 5.1.05, to be subtracted froin lather's support and APL obligatinn..Id at 8-4,"'11. Similarly ;based on the.Court's modifcation'of'Motlrer's income; ihe; Court' adjusted Mother's alimony pehdente lite award, resulting: in Father's monthly alimony pendente lite obligation to be $1 326:62. Id at 9i 10 `j11 iG. Again, based.on the Courtsmodification of Mother's"income,"the Court ch'anged,thelnortgage deviation,ta I COculating,the child support and alimony: pendente life awards with"custody and imortgage'deviations' childcare expenses and' health :insurance as stated" above,. the Court concluded that Father's total"monthly otiligati6, li usive ofeh'ild supportannd,alimony, pendente "lite rwas'$3,740'.29 plus- 10 in,arrears or $374-Q0, xd., , Order at 1241,14;, .'pi Unreimbuised'medical - expensesforbothMother and ;child remained the. same: Mother was responsible for :the first $250, wish-, parties splitting'inreimursed medical expenses. Id, O"rdcr at 12- Mother filed aPetition to.Moi dify Support on or abotit : August 6, 201; 8. Cast Note Report at 39 Tte matter was heard before Hearing'Officer Bonner who'. 'took this matter;under"advisement, on. September 12; 2018. Domestic Relations, `Docket at,15. 01J September 12, 2018,•at aproceedirig'on contempt before Honorable Ann Osborne, the `Court asked -that- Domestic" Relations reAist the,,mattei• to review medical documents submitted-" that marriiing. She Held'the.contemptproceeding in'abeyance. Domestic Relations_ Docket at M. ,On Cetober l2, 2018," Hearing Officer Bonnet dismissed Mother''s-Petitfod%. finding credible Father's testimony ,that " M- other , 'had failed'`to present any substantial change jw6reumstances, Domestic Relations Docket History Report at 15. 'On.0 i,6ber 23 `201 & 'Mother filed aDemand for, Hearing rye no o; Domestic; Relations -Docket History Report a'14. The current°Custody Order liras ent' ' don Decemberll, 2018' Based -on cisedis manifestly unreasonable; A.r ibo result of partiality, pxejudice abias;'o•r i11- will,- as shown by the evideoceaf record::..," Blrie v Blue, 53• Pa.,Sl, 616 A:2d 628, 63.1 .(Pa;19/ )..(citation;o,nittcd). Accdrd'i'I'.D:u: w ED , 2015 Pa.. Super. 10K.A 14 A:.3&987 ;889' This• court respectfully eoritends that it'-failed to abuse its di'scre b .0p-.6rred a amatte,of law.,In addition; it espectfulIy contends that its.eXP s . ofjudgment was-reasonabie and devoid gfpartiality; prejuciicebas'or'illvll: For•the.ceasons stated below and the reasons stated in:its three decisions; isicorporated. in this 1925(a) 0 inion, this court respectfully requests That its decisions'be affirmed >;or•"tlie reasons takd'below. B. Plaintiffs Statement of:Errors Comolained of On Avveal .- Mother's: invocation of the doctrine:ofunclean , hands ,and its ,citation as'an error , or abuse of discretion is inapposite'to the caseat hand `and therefore should. not Abe dismissed by the avpellate court: Mo'ther's first claiirried error states:- Ttie trial .court erred as matter of laur °of'ibused its`discretion iri failing to., apply,the 0.0 trine °of.unclean hands after finding that Defendant Michel Petit'("Father") intentionally misled the.court'by i?aaking multiple fal`se,statemenis under oath regarding I his income, assets and the settlement of two lawsuits; a( sic) NHL Concussion lawsuit and aWorker's Compensation lawsui LThe record reveals that, before the hearing the: NHL Concussion lawsuit had also settled and the proceeds paid t oF athe r; t he Worker 's Compensation lawsuit had also settled and acompromise and release had been executed. But Father, testifying underpath, denied the existence ofboth lawsuits and his receipt of settlement funds. Mother's reliance on this error is mistaken. The Pennsylvania Supreme Court has held that "[a] court may deprive aparty of equitable relief where, to the detriment of the other party,. the party applying for such relief is.. guilty of bad. conduct relating to the matter at issue." Terrirciano v. Com., Dept. of Transporlation, Bureau ofDriver Licensing, 753 A.2d 233, 237 ( Pa. 2000) (quoting Shapiro v, Shapiro, 204 A.2d 266, 268 (Pa. 1964)). Further, Terraciano holds that "[t]he doctrine of -unclean hands requires that one seeking equity act fairly and without fraud or deceit as to the controversy in issue. Id. at 238 (citing-Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098, 1103 (1998)). Thus, the unclean hands doctrine is invoked to deny.a party equitable relief upon a showing of fraud or deceit:in the transaction at issue. This argument is inapposite to this matter on several grounds. .First, Plaintiff sought no relief in equity. The case at hand is achild support and APL appeal based solely on the statutory scheme established in 23 Pa.C.S. § 4301 et seq., the child and spousal: support statutes, and 23 Pa.C.S.§ 3702, the APL statute. In this matter, Appellant was neither entitled to equitable relief nor did she seek it. Therefore, the trial court contends that this doctrine is inapplicable to the instant case. Second, Appellant's statement of error is vague and difficult to understand. She fails to state what error the trial court had committed and what relief the court failed to award ,her. On the contrary, the trial court grantedAlother's requested relief in fading that Father had misrepresented his income to the court and had failed to report changes in his income as required 13 by statues, rules of procedure and caselaw. This finding resulted in arrears in excess. : of $100,000. See January 13,'2023 Decision at 17-18: Mother's:assessmentof error fails to clearly state what equitable relief she sought that the trial court had failed to grant. A Concise Statement must. 'specify the error to be addressed on appeal." Cornmonwealih v: Hansley, 24 A.3d 410, 415 ( Pa. Super, 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (201.1) (citation omitted). The appellate court may find awaiver: of an appellate issue or issues where the filed concise statement is too vague. See Commonweaf[h v. Dowling, 778 A.2d 683 ; 686 (Pa. Super. 2001,); see also Lineberg v. Wyeth, 849, A.2d 141, 148-49 (Pa. Super. 2006) (a trial court should not be required to guess what:issues appellant is raising on appeal).. Because the doctrine of unclean hands is inapplicableand the issue. as framed by Mother is too.vague; the Superior Court should " deny Mother relief on this ground or decline to address this issue. 2. Mother Failed to Establish the Existence of Anv Assets or Their Value for the Trial Court to Order aLump Sum Pavment. .Mother's second issue states: The trial court erred as amatter of law or abused its discretion in refusing to require Father to pay arrearages,for child support, APL, alimony, and attorney's fees _in .alump sum rather than in monthly payments, where, among other things, Fath er has substantial resources; Fathcr intentionally misstated and underreported his inc ome f or man yyears and lied under oath about his finances; Father violated court orders by refusing to produce documents verifying his- income; the minor child is entitled to many more years of child support; and Father is.59-years -old and in ill health. Mother's ,statcment of this issue is rambling and is anything but concise. However;as the trial court understatids this issue, Mother contends .that it erred in failing to order Father to pay a 14 luirip sum to satisfv his arrearages for child support, APL and attorney's fees. ° However, as the trial court explained in its April 26, 2023 Reconsideration Order, Mother failed to identify any assets from which Father could tender alump sum payment in excess of $ 100,000.. Reconsideration Order at 3-5,1MI 2.g-s. Mother correctly asserts that the trial court found.that'Father liedabout his income, This ultimately led to his arrearages assessed as aresult of the calculations.contaiined.in'the:Finaf Support Order issued on.January 13, 2023. Moreover, 23 Pa.C.S. § 3703(2) :permits ;after hearing, the "taking and seizure of goods. and. chattel" to pay arrearages. See also 23._Pa G.S'. §4352(d.1) ("overdue support obligsiod s may constitute alien against real property). However, in the absence of any admissible evidence to establish the-value of Father's assets, the:courf lacked any basis to order Father to pay alump sum towards his arrears. The sole information that the trial court and Domestic Relations currently possess demonstrates that Father has aW-2 job for which his wages are attached and through which the monthly support order has been satisfied plus a30% payments towards arrears, as provided in the court's Reconsideration Order at 5-6. Indeed;. the trial court'rioted. in its Reconsideration . Order, that as the matter has already been designated complex,:Mother may . file amotion or petition requesting the court to order Father to produce verif catiaii - of the-walue of his assets. Reconsideration Order, 4/26/23 at Counsel mistakenly asserts that Father has arrearages for alimony. Judge Pileggi ordered that Father pay Mother "rehabilitative alimony" for eight een mon th s co mmenc i ng Feb ruary 20 19. Find i ngs of Facts at ¶ l4 at 5, Father's wages have always been attached and he has never been in default of his court-ordered child support, alimony and APL payments until the implementation of this trial court's January 13, 2023 Decision and accompanying Final Support Order. See Domestic Relations Lase Financial Summary. This reflects that Father paid the monthly support order on time every month via awage attachment. Therefore, the Domestic Relations record reflects no delinquency of monthly child support or any arrearages. On the contrary, Father had acredit which often totaled in the thousands, 15 1q. Once tbe;value of these assets, iS.9scertained;Mother may take fuurtther enforcement action. through Domestic Relations to satisfy the arrearages, Therefdre;,Mother's 'as§. tion of error is misguided and the trial court respectfully` requests that its decisions be affirmed., 1 The Trial 'Court Did Not Abuse Its Discretion When It Declined to Escrow Father's Funds Because He Was Current on~All Child"Support Pavrneats In lier,ta0 iGi ` Statement. gother asserts in her third issue: Tkie Trial courf erred as amatter of law ,or- abused itsdiseretion when it refused to order Father to escrow-funds; including-,but not limited to.his workers' compensation award and Aension, for the payment'of child support and -other.arrearages Mother's reliance on ibis issue is'miisplaced Thb."Case=financial: Summary from-at least .ord'er which resulted in December 16,`2020 uaitilJaiivary 13; 2023; when the trial court.issued its : ,Father's=arrearages had'reflected acbi:Wsteiit credit in- c]iild .,s upport pport and APL;not any arrearage: Simrlarl'y, the,Ca -, .FinancYal in Pather, paid, the monthly.support or: er an.tiine.every,mgntlS ; via wage:attachment. Therefore,..th e Domes ti c Relations:record re e0 no: delinquency of monthly° chi ld°support' or any arrearages at the time Mother sought to gsexow F4 er':sworkers'' compensation award. On the contraty,.Father had`inaimained'a credit which often16t'aled in the ihoUsands. Father only;'aceiued .arrearages for back child support; aticl. AI'L_after•:#he' trial court.i'ssued.its January 13; 2023 Decision. 23 Pa. S § 4305(b!Q-' (ii),.authoriies'Dotnestic Relations agencies to-"[i]ssue orders where there.is ,asupport. arrearagc to- sectire.as's tb satisfy.aurrent supporf' obligatipn and the arrearage.Uj%:.. Interceptmg:pr seiz.. gludgmenfs.oi stflements. Accolzlin 1 _", RRO'Fathe rmaiiita ped aeredit in hss e} ild.suppor(and APL, Domestic. Relations edger;liad i I o„arrearages, and he-:timely p aid ;his„monthly child support order' eveiy= n tk Dbmd fc Relations lacked the authority io seize Father's workd comperisat on 1:6° a payments in 2021 until Father accrued arrearages when this court's January 13, 2023 Decision and Final Support Order were implemented by Domestic Relations. 23, Pa C.S. § 410(b)(1.0). At escrowed,. discovery was outstanding and the final the time Mother sought that his award be. - support appeal hearings ha ' not occurred. in 2022. As aresult, Father's account reflected no arrearages and Father owed Mother no money other than his monthly child support and APL order which was paid in full every month via wage attachment. Therefore, Domestic Relations And this court lacked any authority to order that Father's workers' compensation award be seized and escrowed. Moreover, Mother asserts that the court abused its discretion in failing to order that Father's "pension" be escrowed.. Indeed, throughout this litigation, the evidence of record failed to. show Father's receipt. of alump. sum from any pension or the existence of apension. Therefore, Mother's as"sigiiinentof'errof thould not be considered by the appellate court. ` Pa. R:App.P. 302(a) (Issues not raised in the trial court are waived and cannot be raised for the first time on appeal). See Commonwealth y: Deible, _ A.3d 2023, W.L. 4715187 (2023 -Pa. Super. 129 ,(7/25/23) ;cifirrg Commonwealth v. Thorne,,_ PA. 276 A.3d 1192, 1.196 (2022). Absent an abuse. of discretion, asupport order shall be upheld. Colonna, 855 A.2d at 641. The trial court neither abused its discretion nor committed an error of law and its decisions should be upheld. See Blue, 616 A,2d at 631. For these reasons, the trial court requests that the Superior Court affirm its decisions. 4. The Court Granted Mother's Motion for Reconsideration and Ordered that Father Pay 30% of His SumortOrder Toward His Arrears. 5In her first Motion for Reconsideration, Mother co ntends that Father h as a residence worth $ 800,000. and apension withn.Su Life Financial worth over $500;000. Motion for Reconsideration at 2. As stated i ni tsRec on sideration Order and this Opinion at 14--'1'6.and.at 28, the record is devoid of any documentation of the existence of these assets ortheir worth..Upon producing this e vide nce , Mother maysee kre li effrom th i scourt to satisfy Father's arrearages. 17 Mother's fourth issue reads; The trial court erred as amatter of law or abused its discretion when. it required Father to pay only 30% of his monthly Order towards his total arrears, which currently equal $1.18,340.79, because with an additional payment of only $454.03 per. month.($5,448.36 per year), it will take approximately twenty-two years f or F at her to pay off the arrearages that -have accrued to date, ' at which time Father w ill be 81 years old . Consequently, the - funds will not be available when needed to support the minor child.. Mother's reliance on this issue is misplaced. Mother correctly asserts that in its January 13, 2023 Decision and Final Support Order, the trial court ordered .Father to pay 10% of his Final Support Order toward arrears. Final Support Order; J %13/23 at 5-9. In Mother's first Motion for Reconsideration filed with Domestic Relations on February 3., 2023, s' he argued that the trial court abused its discretion by awarding only an additional 10% payment towards the. arrears exceeding $ 100,000. Motion for Reconsideration .at 2, 4.b.6 Mother further argued that the trial court should have awarded thirty percent (30%) additional payment towards the arrears, rather- than 10%. In its April 26, 2023 Reconsideration Order, the trial court granted,Mother's request and ordered that arrears be collected at 30% of the child support order. Reconsideration Order at S-6. .Having granted Mother's Motion that payment towards arrears be increased from 10%' to 30%, Mother now assents "as.error that the trial court should have increased it`even more. This argument is frivolous and should not be.considered. In.granting .Mother' sMotion for Reconsideration on April 26, 2023, the trial .court considered Mother's arguments raised in her Motion and both Mother's and Father's arguments during the oral argument on her Motion for Reconsideration. It considered the amount of the 6'Mother'sNotion for Reconsideration is;unpaginated but the trial.c.0 references the'second page of herMotio n. 18 arreaf - - dnd the it',pact-.' Mother and_,child and,Father's rnonthfy net income Asia result; the f. i41,06urt determined Mother's argument meritorious and gran teri her'Motion in rfull'regarding this ,issue; The trial court coiiteiids that it granted Mother's Ivlotion.for Reconsideration in full rcgardingthis, is. pe,and therefdre this"is sue.should not he'considered. Eiir the reasons described :'a ave " the trial court requests that the Superior.Court affmt its decisions; - 5. Case'law Clearly Pro••ides that Father' sWorkers' Compensation Award, NHL,. Concussion Settlement and SunLife Insurance ,PoRev Cash- Out Was Marital Property Pursuant to Parties' Equitable Distribution Order and Cannot. Be. Considered as, Income for Child S̀upport -Purposes: InIg. Aft: issue„I40iher asserts: The. trial court; erred'`as amatter o law -or abused its - discretion in excluding Father's Workers ' Conipensadon - wa`rd }Narional Hockey League ('NHL)Coneitssion Settlement; : and Life Insurance Cash-Out in the Courti's support and APL:caleulations. Asvith herpreviousJ4#i this .040•tacks inerit. The t061- court addicssed..t .is issue at.,length in.its fanuary 1.3, 2'423 Decision. See Jarivao 13, 2'023 DeoW6fi4f 1.7=1.5 aizd 37-42.'To summarize, the parties,_`represented.bycouh§e-1, entered into. an.agreed,,propertytsettlemerit agreement ,on the record before the Hon. Domenic Pileggx nn'JanuaryN 2019. In.eiitering'into this agreed p'top-ertysatlexnent; .Mother and Father Mete subjected tc .an, "extensive: colloquy" on the record 7court: Court Rtbibif 1, E.D;C}rder af;, l Januar}F ;13; 2b23 Decision at 39 :This agreed order on the record ,*6s' redueed 'to writing by Judge Pileggi and issued,as an order on February. ebrua y.#., 2019: The E:D; Order,, Ptovided, ig:.Pertinent ;part as the trial court explained:in>,its :Findings Fact: Plaintiff received `.the marital home and thereafter.,vvas responsible for - the mort gage; taxes;, utilities,and `other expenses, 19 2:- Plaintiff would buy,out Defendant's , interest `in the marital .home by`ter;dering $ 50;000 within ten days of the Order:, 3, `, Plaintiff would .receive the; contents .of the house, subject to`Defendant's return to the` home on January 25,2019 to remove items previquslyagreed:.were his_. ••Bot>a parties kept their own bank accounts. 5; Defendarit waived any right to anal - ed distributions that might;have been: previously taken by Plaintiff; 6;Eachparty:keptvehrclesin,their possession. 7: Husband was,awarded the Sun AfeẀhole insurance. policy but was responsible for the loan balance 11d. at ¶3.k 8.Husband was awarded "all right, title and interest in a worker's- compensation claim currently pending in the State of California for pre-marital injuries received by .Husband and Wife hereby waives any'and all iight,; title and interest which she m ay ,have to that claim ." E.D. Order at ¶3L Husband was awarded "all right,title and interest w hich he m ay have.to any settlement yerdict, judgment or other' disposition of funds=awarded to, b" in a. pending lawsuit filed by the NHL Players Association as aresult (if injuries. sustained by players during - their •playing career." Mat ¶3.m.. 'IQ,, Husband'wa•s `awarded his, NHL pension ashis sole and exclusive property to, the exclusion ofwife whwhereby waives any andall right,,title'and interest therein except as,specifled herein below."Id. at ¶3:n. 11. Wife was awarded "25% of the increase- in value of Husband's pre-marital NHL. pension :with the - date of marriage specified as..June '29, 2001,, until, the ' date' of separation specified as :December 24,'2015...' Id. afi¶3.n(i), January 13 ;-2023 Decision ot.39-40JEmphasis'added); Court'EXliibitj. The trial court cotitinueil in . its:analysis;of'the E D. tOrder: further waived'the right to seek further equitable 'distribution, agreed to be Parties - responsible for their own debts Qd- at t1o) and agreed, that Defendant would pay Plaintiff $1,0 oper month alimony commencing February l ;2019 for-eighteen ( 1.8) months. Id, it 14. Last, each. pai ty.agreed to Beat th6irown counsel fees: Id. at ¶$: Further, the;trial -citart determined'; =Review,of the ` languageiwihis,agreed Order-.demonstrates ,that=there must have . been considerable negotiation between -the parties to resolve the parties" equitable distribution claims: Of partkc lar,note is`the language of the Order which'incorporated:the parties' agreement:, Hust and`is awarded at] right, title and interest in aworkmen's. compensation`clairn currently,pending in the State bf Califforn afor pry marital injuries received by Husband °ancl Wife hereby waives,any and all. right; title and interest which she.riay have to;the clan; :Husband is awarded all right, title..and interest which he may have to. any. ;settlement; verdicts judgment or'oiher'°disposition offunds awarded tobim 2 in apending lawsuit filed by the NHL Players' Associ ation as aresu lt of injuries sustained by players during their playing career. January 13, 2023 Decision, quoting Id. at 4, ¶¶ m and n. The trial court further determined that "while the-language pertaining to Father's workmen's compensation claim: references pre-martial injuries, in no way does the language in the agreed E.D. order stipulate that any, funds received from this claim are entirely pre-marital pursuant to 23 Pa C.S.A. § 3501(a)(1) and thus excludible from the marital estate." January 13; 2023 Decision at 40. Rather, the language agreed to by the parties provides that,although the injuries were incurred prioi :to the parties' 'marriage, Mother has some claim to these monies. Therefore, Mother or "Wife;" as she is referred to in: the E.D. Order, agreed to "hereby waive any and all right; title And interest which she may have to the. [workmen's compensation] claim.."Id E.D. Order at 114m. This interpretation is bolstered by Ms. Petif sreceipt of other property and funds pursuant to the Eb,, showing that parties had engaged in negotiations regarding- the martial estate and that she bad received consideration in returti for waiving her right to Mr. Petit's worker's compensation award. Indeed, Ms- Petit received the martial home valued at $619 ;000, eighteen months of iehabilitative alimony as well as other consideration, E.D. Order, Court Exhibit 1at ¶113a. and 4at 2and 5. The trial court applied the same analysis to Father's concussion and Sun Life Insurance policy, deeming it part of the martial estate which the parties had agreed to distribute. See 13, 2023 Decision at 41; E.D. Order at Jf n, ¶3.k: .January - 21 As the trial,codit discussed in its January 13, 2023: Decipn, li jjer. ; y,, .!flitter, A.783 A Zd' 832 ( Pa.,_$Olicr. 2001,)`...', 0related ' 04W§ gavem th%s situation, Tanuary .13, 2'023 Deci"sion.aflt- 39;.'S' dfiaM; it determlUed: In ]!Miller, Wife filed for modification'of the child support'order to: seek recalculation of Husband's child support obligation as aresult,of ,proceeds.he received: from equitable distribution: In sowguing, Wife cited the definition of "income" contained in 23 Pa. " C;S.A. §4302 and contended that th es eprocee ds fall within that expansive definition:. In considering Wife's argument; the Miller oibi-t first noted that the proceeds' , received from equitable distribution were intended, to "effectuate economic-justice ,between parties who are divorced:., and insure afair and just determination and scttlementof their property rights," 23 Pa: C.S.A ;§;3102;:7.83 A.2d':af835. (Other , ,citations •pbliptims are calculated by.*termining ibe:parties' monthly net, incomes, Pa:k.C:P.10,10-16.2 ::Mother , correctlyasseris that the record establishes that.Father, received stock options,as. compensat on,from his employment. Slie never established the value of Chese stocl options: Father rieve-reported areceijifi bf.the stock optioin"s:'as ucome ou his4ax Oti. 101 . Mother failed to f6llow•:up'and'establi`sh;anyvalue.ofthe§e optiotIs: She could have:. e4ablisbed t1ii` valbe through discovery, at ozie of the, hearings through testimony or by retention :. 6f'n expert: She t9p . none of these actions,: Indeed' Father's Schedule C fornns, appended to his, tax returns, demonstrate'a net loss from hisstocks for tax years 2016-2020.;See Exhibit'R20. - Absent. any admissible evidence to stow the value of the stock:options, and any stock;the trial, court remained Gloss to include them,as income_to,calculate child ,support, and APL. Indeed, plucking afigure out ,of the - void - and-assessingthe, value sua spoirte^would constitutean abuse of. discretion. See kue,:X16 A.2d at 63.1 a:court.conimits an error.of 1aw,if when reaching As conclusion; "tlie lawis:ov'erridden or misappli•d,.'or the judgment,exercised, smanifestly unreasonable;:oi the result tifpartiality,,prejudice,=bias,or ill,-w.iil, as shown by the evidence,of 'T ereeds, result' the trtatco itt requests that=rfs decisions be-a rmed, s° * 8: The Trial Cour't's'Denial of-Ezfra-Currlcular Activities "Was A Proper Exercise, of its Discretion and Should Be Affirmed. Mother's ,eighth issue states: erred as.a rdatter oflaw*'abused its; discretion in refusing to award The` trial court _ Mother reimbursement for'extracumcular expenses on the.,grourids„'that Mother-failed to eonsult with lather before, signing;thc child up for-activities,.where tbe.record "revealed. that Mother has 100°f physical custody, Fatherrhas ha&n6contact_vwith ihe,, child-since. September 20'18, and father'bas never exercised his joint legal custodyor expressed any desire to participate in.°decisions involving the child._ "eIies on`its discus 1n response;the trial iourt r ­11sign.iti its January. 3'; X023, Decision: Mother=also claims that Father, has failed ,to reimburse her for child's extra .curricular activities: The Court notes that the parties' Custody Order of,' 2018; provides thatparties share legal custody: Exhibit P=19 . 20 Legal custody is'defined in'23 Pa. C.S'§5322 as , "[t]he righ'tfo make major.decis ons on.behal'f ofthe child, including; but not limited to; medical ;religious "arid 'educational decisions:"Judge'Pileggi noted that Father rarely availed himself of his partial custody in,his,February and May 2017 Orders'. February.17,'2017 Support Order, Exhibit P- at 8, ¶29; May 12, '2017 Support Order; Exhibit; P-7, at, 8, 1129: Moreover, Father acknowledged that he has not`seen or spoken to his so since 2018 N.T. 7/25/22.at, ,, 9I Notwithstanding, parties' failure to communicate .and Father's' failurc'to'vis'it or, speak with°child ;Father still retainslegal.custody Since parties continue to share legal custody, Mother has been obliged to notify Father of her intent to eriroll'child in extra- curricular activities toseek his consent: Mother failed to, present any :evidence of, her' efforts to ;consult with:Fatherpraoraa enrolling child in extra-curricular activities since, 2016. The record reflects that•Mother. and Fatherhave not communicated for year§N& Mother had'other`options to seek Father's consent for extra- curricular activities, like ;sending her proposals for,extra-curricular'aetivities to Father eitherwia-text;',emai.lor even U.S:_rnail.with a, deadline to respond and acaution that she woutdconstrue his failure to respond as consent: Motherfailed_;to exert this rninimal effort to consult. .Father: January 13,E 2023 Decision of-46: The trial court also notes that these extra-cuniccular.activities have been.expeiisive' Bidiibit P-28 outtines monies . for -extra-curricular actiAfkq expended lyMother, In 2018 she 25 spent $1.773 for which she sought $1595.57,- for 2019 she spent:$2008.80 for which she sought '$1647.2.16, activities appeared to have been suspended in 2020 due to the pandemic, and in 2021., she spent $2337.06 for which she sought $2103.35 from Father..As these costs were not .modest, the court deemed it unfair to ask Father to bear 90% or more of these costs without any warning. The trial court continued in its January 13, 2023. Decision, The Court appreciates .how Mother believes that child should be engaged in physical activity and, that child has benefitted from these activities. However, given Father's joint legal custody and Mother's failure to consult him about child's extra- curricular activities prior to enrollment ; the :Court declines to require Father to reimburse Mother for these extra-curricular activities, as Mother made absolutely no effort to include Father in any decision to enroll child or advise Father of child's prospective extra-curricular activities prior to his enrollment. January 1.3, 2023 Decision at 46. Forthese reasons, the trial court declined to - award Mother extra-curricular expenses. The trial court respectfully contends that its decisions failed to constitute an abuse of discretion and its decisions should be affirmed. 9_ The Trial Court Proverly Ordered That Father Must Satisfy the Child Support: and APL Arrearaees Before Mother's Attorney's Fees and Costs-Are Paid. In her ninth issue., Mother states: The trial court erred as amatter of law or abused its discretion in refusing to require Father to promptly pay 100% of Mother's attorney's fees and costs.from the inception of this case as asanction for Father's dilatory and obdurate behavior, unclean hands, and blatant contempt of court orders. The trial court :considered this issue raised in Mother's Motion for Reconsideration filed Ftbruary 3, 2023. Motion for Reconsideration at 5-6. 7The trial court's January 13, 2023 as well as its. subsequent orders on Mother's two Motions for Reconsiderations make it clear that it 7 Mother's Motion for Reconsideration is unpaginated 26 disapproved of Father's conduct during the course of this litigation. In this decision, the trial court concluded: Given the large disparity between Father's reported:wages to Mother and Domestic Relations over more than two years,. 2016 to 2018, the Court must conclude that Father's failure to timely and accurate report his wages and to correct his stipulated wages with Mother were not advertent but willful. January 13, 2023 Decision at:1 - Moreover, the trial court concluded - that- Father had mispresented his income to Domestic Relations, to Mother and to the court.on multiple occasions. Id. at 36. Brazenly,, Father then sought to hold Mother responsible for this multiple misrepresentations to the court. The trial court dismissed' this attempt, noting that: "[it] defies logic -for this Court to:hold Mother responsible for Father's dissimulation§ and for this Court to. permit Father to profit from his misrepresentations." Id. at 37. The court further noted "Father's bald-faced misrepresentation to the Court on March 4, 2021, where he denied.anyknowledge of the workers' compensation settlement he had entered. into several weeks before. (Citations omitted). Id. at 27, ¶ 131. However, as stated in the trial court's prior reconsideration decision, 23 Pa.C.S. § 4351 requires that "[p]ayment of support owed to the obligee shall have priority over [attorney's] fees, costs and.expenses.". (Emphasis added). The use of the word "shall" eliminates the trial court's discretion regarding any child support arrearages. Therefore, the court. simply lacks the authority to order that attorney's fees be paid before Father satisfies his child support arrearages; atotal 'amount of $30;248.13. If it did so, it would constitute reversible error as an error of law. The trial court also exercised. reasonable discretion in this matter, requiring that Father pay Mother's APL arrearages before remitting her attorney's fees and costs. Further, it also observed that during this litigation, hrough alengthy discovery process; the trial court admitted into evidence extensive information about Father's yearly income. 27 However, Mother failed to submit any -evidence regarding additional assets available to satisfy these arrears, other than those mentioned above, the workers' compensation award, the concussion settlement and the Sun Life Policy;which the trial court deemed unavailable to Mother for child support and APL. See above at 18-22; January 13, 2023 Decision at 37-42. Even though the trial court ordered APL and child support be paid first before attorney's Fees and costs, it understood the importance of Father fulfilling his long overdue obligations to Mother and to her attorney. It referenced Mother's ability to seek discovery of any assets which may satisfy Father's arrearages and his financial obligations towards Mother's attorney. After A13Land child support were satisfied, the trial court then stated that: "[w]ith over $ 100,000 in child support and APL owed to Plaintiff, the Court's information gleaned from these proceedings confirmed.Defendant's net yearly income available to satisfy APL and child support. It failed to provide any information about additional assets that might be available to satisfy the arrears as well as attorney's fees and costs." Reconsideration Order fit„ 10, ¶VIII.b. In declining to enter an order to require Father to immediately remit $40,000 in attorney's fees plus $4040.50 in costs to Mother's counsel, Rebecca Kolsky, Esquire, the court properly exercised its discretion. It placed payment of child support as apriority as required by law. Fuitlier, it reasonably exercised its discretion in requiring that Mother be paid her APL arrears after the child support arrears have been satisfied. Finally, in its Reconsideration Decision, it suggested*,hat Mother still retained remedies toSecure further payments through the discovery process by ascertaining the existence of additional assets through Domestic Relations.'Without such information, the trial court deemed ordering Father to pay such alarge sum immediately a doomed enterprise that may jeopardize Father's current child support. payments as well as payments towards the child:suppgrt ; and APL arrearages. ;84 For these reasons ;the trial cour ;properly "exercised its,discretion,and its decisions should be of mied. CONCLUSION For the'foregong reasonsathe trial court respectfully requests that its January lay 2023 Findings of.Fact and Conclusions of Law; April 26,,1023 ' Order Granting Reconsideration in Part and .Denying in tart and. May 25 ;2023 Order Granting Motion for ,:Reconsideration be affirmed BY THE COURT; - r STEPHANIE H. KLVN, J. 29 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10513982. Public record. Not legal advice.