M.E.W. v. W.L.W.

J-A11038-20

2020 PA Super 229

M.E.W. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

W.L.W. :

:

Appellant : No. 925 MDA 2019

Appeal from the Order Entered May 21, 2019

In the Court of Common Pleas of Adams County Civil Division at No(s):

04-DR-101,

17-DR-345, 2006-SU-0001033,

PACSES 008106183, PACSES 234116752

J.Z.W. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

M.E.W. : No. 928 MDA 2019

Appeal from the Order Entered May 23, 2019

In the Court of Common Pleas of Adams County Domestic Relations at

No(s): 17-DR-345,

PACSES 234116752

W.L.W. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

M.E.W. : No. 929 MDA 2019

Appeal from the Order Entered May 23, 2019

J-A11038-20

In the Court of Common Pleas of Adams County Domestic Relations at

No(s): 04-DR-101,

PACSES 008106183

M.E.W. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

W.L.W. : No. 995 MDA 2019

Appeal from the Order Entered May 21, 2019

In the Court of Common Pleas of Adams County Civil Division at No(s):

2006-SU-0001033

W.L.W. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

M.E.W. :

:

Appellant : No. 1002 MDA 2019

Appeal from the Order Entered May 9, 2019

In the Court of Common Pleas of Adams County Domestic Relations at

No(s): 04-DR-101,

PACSES 008106183

J.Z.W. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

M.E.W. :

:

Appellant : No. 1003 MDA 2019

Appeal from the Order Entered May 23, 2019

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J-A11038-20

In the Court of Common Pleas of Adams County Domestic Relations at

No(s): 17-DR-345,

PACSES 234116752

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 18, 2020

In this consolidated appeal, W.L.W. (“Mother”) and her son, J.Z.W.,

appeal from the order entered in the Court of Common Pleas of Adams County,

Domestic Relations, dismissing their Petitions for Modification of Support

seeking the re-opening of the support case for J.Z.W. given alleged changes

in relevant circumstances. Specifically, the trial court determined that M.E.W.

(“Father”), an Ophthalmologic surgeon, was not obligated to pay any support

for J.Z.W., and it reinstated a former order requiring Father to provide medical

insurance coverage only. In Father’s cross-appeal, he contests the court’s

order denying his motion seeking to bar Mother’s petitions on the basis of

collateral estoppel or equitable estoppel.

We affirm the order as it pertains to Father’s cross-appeal, but we

vacate the order denying the petitions filed by Mother on behalf of herself and

J.Z.W., respectively, and remand for calculation of Father’s support obligations

to J.Z.W. consistent with this decision.

The trial court aptly provides the facts and procedural history, as

follows:

____________________________________________

* Former Justice specially assigned to the Superior Court.

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The above-captioned cases [came] before [the trial court] by

virtue of cross-demands for hearing de novo filed by the parties,

resulting from a Petition for Modification of Support filed by

[Mother, W.L.W.] and a Complaint for Support filed by [Mother,

W.L.W.] on behalf of [her adult disabled son] J.Z.W. The caption

of the parties’ divorce case is included because their marriage

settlement agreement has some bearing on the support matters.

GENERAL BACKGROUND

Mother and M.E.W. (“Father”) were married on August 11, 1990

and separated on September 8, 2006. They were divorced by

decree dated January 7, 2011.[] They are the parents of three

children, all of whom were once the subject of an Order of Court

for support. Two of these children have emancipated and thus are

no longer the subjects of that Order.

This instant issue involves support for [Mother’s and Father’s]

[now 29] year-old dependent child, J.Z.W., who was born of the

parties’ marriage in January of 1991. The parents have stipulated

that J.Z.W. is unable to engage in gainful employment in order to

support himself. J.Z.W. resides primarily with Mother. By

Orphans Court Decree dated September 17, 2015,[fn] J.Z.W. was

found to be “a totally incapacitated person whose ability to receive

and evaluate information effectively and communicate decisions

is impaired to such a degree that he is a) totally unable to meet

the essential requirements of his physical health and safety; and

b) totally unable to manage his own financial resources.” In re:

J.Z.W., OC-75-2015. Thus, J.Z.W. was found to be in need of a

plenary guardian of his person and estate. Mother was appointed

Guardian for J.Z.W. in both of these capacities. In support of this

decision, Judge Kuhn noted in his findings of fact that J.Z.W. has

a “diagnosis of Trisomy 21/Down Syndrome, pervasive

developmental disorder, ADHD and obsessive compulsive

disorder, which is permanent in nature. He also cannot read nor

write.” Id.

Fn. Adams County Orphans Court case number OC-75-

2015, presided over by the Honorable John D. Kuhn.

Prior to the entry of the Orphans Court Decree, the parties entered

into a global Marriage Settlement Agreement (“M.S.A.”) to resolve

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their divorce litigation on January 5, 2011. The M.S.A. was

incorporated into but not merged with the Divorce Decree. The

M.S.A. included a provision for alimony, with reference to the

support of J.Z.W., as follows:

11. ALIMONY: Beginning with the first day of the

first month following the execution of this Agreement,

[Father] agrees to pay [Mother] alimony in the

amount of $800 per month and continuing for the life

time of the parties’ child, [J.Z.W.]. It is expressly

agreed that the dollar amount of the alimony (i.e.

$800 per month) is not modifiable upward or

downward. It is further expressly agreed, however,

that the payment of alimony is terminable, and will

terminate, in the event of [Mother’s] remarriage, the

death of either party, upon [Mother’s] co-habitation

as defined in the Divorce Code, or if there is ever a

change of custody with respect to [J.Z.W.].

It is the intent of the parties that [Father’s] alimony

obligation to [Mother] is to contribute to [Mother’s]

additional expenses that result from exercising

primary care, custody and control of the parties’ son,

[J.Z.W.].

This provision has been negotiated on the assumption

that the payments described above shall be deductible

by [Father] and includeable (sic) in the income of

[Mother]. Therefore, it is the intention, understanding

that agreement of the parties that the payments

described in this paragraph constitute “alimony” as

that term is defined in Section 71 of the Internal

Revenue Code and that, accordingly, all such

payments shall be includeable (sic) in Wife’s gross

income and deductible by Husband for Federal Income

Tax purposes, pursuant to Section 71 and 215 of the

Internal Revenue Code.

M.S.A., 1/5/11, at ¶ 11.

In his Findings of Fact in the guardianship case, Judge Kuhn noted

that J.Z.W. was receiving $700 per month in Social Security

benefits, but had no other income or assets at that time. In re:

J.Z.W., OC-75-2015. Paragraph 12 of the parties’ M.S.A. directs

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that [Mother] shall be the representative Payee for J.Z.W.’s social

security benefits.

BACKGROUND OF THE CHILD SUPPORT CASE

Mother filed a Complaint on October 5, 2009 for the support of the

parties’ three children, J.Z.W. (born in 1991), K.A.W. (born in

1994) and A.N.W. (born in 1998).[] When the Complaint was filed,

J.Z.W. was age 18, K.A.W. was age 15, and A.N.W. was age 10.

A support Order in the amount of $1,266 per month was entered

for all three children on February 18, 2010. J.Z.W. was 19 years

old by that time and was receiving social security benefits. Father

was ordered to provide medical insurance coverage for all three

children.

Subsequent to the entry of that support Order, Mother has filed

multiple petitions for modification of child support. The support

amount was modified by Order dated April 6, 2011, in which the

parties expressly agreed on the record during a hearing de novo

to remove J.Z.W. from the support order altogether, and Father

would continue paying support for the two younger children.[fn]

FN. During a hearing de novo held before the Honorable

Robert G. Bigham on April 6, 2011, the parties’ attorneys

represented that J.Z.W. would be taken off the support

order, effective January 7, 2011, [forming a new support

amount for his two siblings of $1,875 per month]. Hearing

Transcript, p.2.

On July 29, 2011, Mother filed another Petition for Modification to

add J.Z.W. back into the support case. By Order of Court dated

September 23, 2011, the DRS denied Mother’s request

due to the parties’ Marriage Settlement Agreement

and no additional expenses currently for [J.Z.W.] to

increase the child support amount. . . . An

administrative review or review conference is at the

call of either party concerning the extra ordinary (sic)

expenses for [J.Z.W.] within the next six months.

Otherwise a petition for modification would be

necessary to change the order.

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On October 7, 2011, Mother filed a Demand for Hearing De Novo.

Testimony was taken on March 6, 2012, and April 5, 2012. A final

Order was entered on April 9, 2012 for the support of A.N.W. only,

with no provision for J.Z.W.

On May 22, 2014, Mother filed a Petition for Modification of

Support requesting a review of Father’s income. Support was

modified for A.N.W. by Order dated June 18, 2014. The

Conference Officer’s notes from that proceeding indicate that “the

parties have an adult child that requires special care,” but no

provision for J.Z.W. was made in that Order.

On June 19, 2015, Mother filed a Petition for Modification of

Support requesting a review “due to change in incomes.” A

modified Order was generated on August 5, 2015 for A.N.W. The

only vague allusion to J.Z.W.’s circumstances in the Conference

Officer’s notes was that the parties’ disputed whether or not

Father’s $800.00 per month alimony payment should be included

as income to Mother.

On January 15, 2016, Mother filed a Petition for Modification of

Support to add J.Z.W. back into the support order. The Order of

Court dated March 21, 2016 was entered for the support of J.Z.W.

at $0 and A.N.W. at $1,862, noting that:

The support amount remains at $1,862 per month through

domestic relations section. The guideline calculation for

two children would be $2,577 per month. [Father] is

paying $800 per month by a Marriage Settlement

Agreement for [J.Z.W.]. The combined amounts total

more than the $2,577 per month guideline amount.

[J.Z.W.] is added to the order for medical provisions.

This Order was not appealed.

On June 7, 2017, the [trial court] entered an Order terminating

support for A.N.W., triggered by her emancipation, effective May

26, 2017. This Order directed closure of the case when all arrears

were paid. No appeal was filed to that Order.

On July 18, 2017, Mother filed a Petition for Modification to re-

open the support case for J.Z.W., claiming that she is entitled to

“other” relief because of the following material and substantial

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changes in circumstance: “sons (sic) mental status has gotten

worse, unable to work do (sic) to his status. Lost my 50k a yr.

income.” On August 23, 2017, [the trial court] entered an Order

dismissing Mother’s Petition and directing closure of the case

because Mother was receiving support for J.Z.W. through the

parties’ Marriage Settlement Agreement dated January 5, 2011

and because Mother failed to cooperate in providing medical

documentation to Father in order to enable him to comply with

the requirement to provide health insurance for J.Z.W.

Mother then filed a Demand for Hearing De Novo appealing the

August 23, 2017 Order in 04-DR-101. Mother also filed a separate

Complaint for Support listing J.Z.W. as the Plaintiff, docketed to

17-DR-435. Both matters . . . [were] consolidated for purposes

of the court’s decision.

In her . . . Demand for Hearing, Mother asserted that J.Z.W. has

been disabled since birth and has “unusual medical and physical

assistance needs which warrant a child support order” and that

the $800.00 per month alimony provision in the parties’ MSA is

inadequate to meet the child’s needs. In addition, Mother

assert[ed] that Father failed to produce current income

information at the time of the support conference as required by

Pa.R.C.P. No. 1910.11. Father rectified this by producing

evidence of his current income during the hearing.

Father assert[ed] that Mother [was] equitably and collaterally

estopped from requesting additional support for J.Z.W. After

consideration of the parties’ briefs, the [trial court] remanded the

matter to the Domestic Relations Section for a calculation of the

basic support amount based upon the parties’ current incomes,

along with the reasonable needs and expenses for J.Z.W., to be

offset by Father’s monthly alimony payments, reserving the right

of both parties to file an additional Demand for Hearing Novo.

Upon remand, the Conference Officer determined Mother’s net

monthly income to be $2,985.19 and Father’s net monthly income

to be $20,024.97. This yielded a guideline support obligation of

$2,066.96 per month for J.Z.W. A downward deviation of $800.00

was applied to give Father credit for the alimony payments. This

resulted in an obligation of $1,267.00 per month, effective July

18, 2017. It does not appear that there was much discussion of

J.Z.W.’s reasonable needs during the conference. Both parties

filed an additional Demand for [a] Hearing De Novo, and the

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matter was certified as complex. Discovery was permitted and

extensive testimony was taken, concluding on December 27,

2018. Post-hearing briefs were submitted by counsel on January

31, 2019.

Trial Court Opinion, 5/9/19, at 1-6.

By the trial court’s order of May 23, 2019, the court dismissed Mother’s

petitions filed in her name and in the name of J.Z.W. In so doing, the court

accepted and adopted the Conference Officer’s calculation of J.Z.W.’s assets,

Mother’s and Father’s respective incomes, and Father’s resultant support

obligation under support guidelines. The court then applied a downward

deviation from the prescribed support amount reflecting both Father’s $800

alimony payment for the benefit of J.Z.W., as provided in the parties’ MSA,

and Father’s “fixed and unusual” financial obligation to repay a promissory

note of over $1,000,000.00 executed as part of a series of agreements making

him 50% shareholder in his business partner’s Ophthalmic practice. The

resultant downward deviation completely offset Father’s guideline support

obligation, such that the court’s final order required Father to provide J.Z.W.

with medical insurance only. The parties’ respective timely notices of appeal

followed.

Mother presents the following questions for our review:

1. Did the trial court err by using an incapacitated adult child’s

limited assets as a deciding factor to relieve his father, [an

Ophthalmologist], of his support obligation, when [Father] is

an extremely high earner who has ample resources to provide

support?

2. Even if it were permissible to consider the child’s resources, did

the trial court nevertheless err by attributing income to the

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child from sources that do not qualify as income under the child

support guidelines?

3. Did the trial court err by deducting [Father’s] business loan

payments from his net income, when both the support

guidelines and case law dictate that such voluntary expenses

are not a factor to be considered in calculating support?

4. Did the trial court err by finding that [Father] is entitled to a

downward deviation as a result of his business loan, when case

law directs that the decision to expand one’s business is not a

valid basis for deviation?

5. Did the trial court err by reducing [Father’s] support obligation

calculation by $800 per month to give him “credit” for the

alimony he pays?

Appellant’s brief, at 4-5.

Father, for his part, raises one issue on cross-appeal:

[Did] the trial court err[] in determining that [Mother] is not

barred from requesting child support for JZW on the basis of

collateral estoppel or equitable estoppel[?]

Appellee’s brief, at 2.

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.

Brickus v. Dent, 5 A.3d 1281, 1284 (Pa.Super. 2010) (citations omitted).

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Furthermore, this Court:

must accept findings of the trial court that are supported by

competent evidence of record, as our role does not include making

independent factual determinations. In addition, with 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, as

are credibility determinations, and the court is free to choose to

believe all, part, or none of the evidence presented. This Court is

not free to usurp the trial court's duty as the finder of fact.

Mackay v. Mackay, 984 A.2d 529, 533 (Pa.Super. 2009) (internal citations

and quotation marks omitted).

In Mother’s first issue, she contends the trial court erred when it used

J.Z.W.’s financial assets as a factor to relieve Father of his support obligations,

especially where Father is an extremely high earner with ample resources to

support his son. Where the parties have stipulated that their disabled son is

incapable of supporting himself as an earner, Mother argues that she satisfied

her evidentiary burden to rebut the presumption of nonsupport that applies to

adult children. Under these facts of record, she asserts the trial court should

have, therefore, set Father’s support obligations without consideration of their

son’s assets.

In Pennsylvania, “the duty to support a child generally ceases when [he

or she] reaches the age of majority, which is defined as either [18-years-old]

or when [he or she] graduates high school, whichever comes later.” Style v.

Shaub, 955 A.2d 403, 408 (Pa. Super. 2008). When, however, the child has

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some mental or physical condition that prevents self-support or emancipation,

the parental obligation continues under 23 Pa.C.S.A. § 4321(3). Geiger v.

Rouse, 715 A.2d 454, 458 (Pa. Super. 1998), appeal denied, 1999 WL 112220

(Pa. 1999); Crawford v. Crawford, 633 A.2d 155 (Pa. Super. 1993);

Hanson v. Hanson, 625 A.2d 1212 (Pa. Super. 1993).

The test to determine whether an order of support is appropriate is

“whether the child is physically and mentally able to engage in profitable

employment and whether employment is available to that child at a supporting

wage.” Hanson, supra at 1214[.] “The adult child ... bears the burden of

proving the conditions that make it impossible for [ ] him to be employed.”

Verna v. Verna, 432 A.2d 630, 632 (Pa. Super. 1981). See also Kotzbauer

v. Kotzbauer, 937 A.2d 487, 489-90 (Pa. Super. 2007). Accordingly, “[t]he

‘reasonable needs’ of a disabled adult child are those needs which [he or she]

is unable to meet through [his or her] own efforts.” DeWalt v. DeWalt, 529

A.2d 508, 511 (Pa. Super. 1987).

In addressing Mother’s first issue, we rely on the seminal case of Ricco

v. Novitski, 874 A.2d 75 (Pa.Super. 2005), which discussed whether assets

of a disabled child should be considered in support matters:

A parent must discharge his support obligation to his minor child

where he can reasonably do so, regardless of the child's assets.

Where the parent's resources are lacking, the court may consider

a child's assets if such expenditures would save the child from

need or destitution and are in the child's interest. A parent may

not evade his support obligation by depleting his child's own

assets, unless the parent is genuinely unable to provide for the

child's needs.

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Id., 874 A.2d at 82 (internal citations omitted).

Applying the above principle to the facts of the present case, we reject

the trial court’s methodology of reviewing J.Z.W.’s assets to adjust his high-

earning Father’s support obligation, as such a review is appropriate only when

the parent's resources are lacking. Ricco, 874 A.2d at 82. Specifically, the

trial court indicated that it reviewed J.Z.W.’s assets in light of his reasonable

needs and then substantially relied on such assets to justify applying a

downward deviation to Father’s prescribed guideline amount of support.

Coupled with the court’s additional consideration of Father’s alimony payment

under the MSA and his obligation to repay a business loan taken to buy a 50%

ownership interest in a lucrative Ophthalmic practice, J.Z.W.’s assets factored

into the court’s decision to completely offset Father’s guideline amount of

support despite Father’s high annual income and evident ability to provide for

J.Z.W.’s needs for the foreseeable future.

In adopting both the Conference Officer’s calculations and her

conclusion that J.Z.W.’s monthly assets exceeded the current basic support

obligation, the trial court stated:

The Conference Officer calculated Father’s net monthly income to

be $20,024.97. Father is an ophthalmic surgeon and a partner in

[an established Ophthalmic LLC]. While Father does not quarrel

with the calculation of his monthly net income, he requests a

substantial deviation downward from the guideline amount of

support, which will be discussed below.

Utilizing the above monthly net incomes, the Conference Officer

determined the guideline calculation of support to be $2,067.00

per month[] and applied a downward deviation in the amount of

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$800.00 per month in consideration of Father’s “alimony”

payment made for the benefit of J.Z.W., to arrive at a

recommended support obligation of $1,267.00 per month. As

noted, supra, J.Z.W. receives income either directly or indirectly

in the amount of $3,979.57 per month [comprising monthly SSI

payments of $752.00, alimony payments of $800.00, and ARC-

funded services valued at $2,427.00. The trial court also

referenced J.Z.W.’s “special needs trust,” though there was no

testimony whether any income is available to J.Z.W. through the

trust at this time. See TCO at p. 9]. The latter sum [of

$3,979.57] greatly exceeds the current basic support obligation,

without even considering Mother’s ability to contribute.

TCO, at 11.

The court’s rationale relying upon J.Z.W’s assets to relieve Father of his

support obligations ignores the Ricco mandate that courts forego analysis of

a child’s assets where the support obligor is capable of providing for the child’s

needs. Father, however, argues that Ricco is distinguishable because it

involved a minor child, whereas here, J.Z.W. is an adult.

It is undisputed that J.Z.W. is a severely disabled adult who will forever

be unable to support himself to any degree. Indeed, Ricco addresses the

need in such circumstances—where the parent’s income is sufficient to enable

continued support—for a disabled child’s assets to remain available to assist

him throughout his life as a disabled adult:

Because the [Child’s] Trust is being depleted in lieu of Father’s

support, Child’s future needs as a disabled adult are at risk.

Although the Trust assets are presently substantial, they are

necessary to provide for Child’s needs throughout his life….

Ricco, at 80.

As noted, Father in the case sub judice projects as having little difficulty

providing financial support for his severely disabled adult son for the

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foreseeable future. For the trial court to have reduced Father’s support

obligation after consideration of J.Z.W.’s assets and special needs trust was

to disregard the holding in Ricco recognizing the need to preserve disabled

children’s assets that will serve them as a last resort of support if and when

their parents are no longer able to provide for them. See id. Indeed, Father’s

alimony payment is one such perishable asset, as an array of contingencies

dependent solely upon Mother’s status call for its termination, regardless of

J.Z.W.’s continued need. The trust in J.Z.W.’s name, apparently funded

exclusively by his SSI benefits on occasion and consisting of an unestablished

principal amount, is another such limited asset.1

With respect to J.Z.W.’s SSI benefit, Father notes that such payment to

an adult child may also qualify under Rule 1910.16-5(b)(3) of our support

guidelines as “other income in the household,” see infra, thus permitting a

court to apply a downward deviation from the guideline support obligation.

We disagree, however, that the facts adduced below allowed for such a

categorization of J.Z.W.’s benefits.

____________________________________________

1 It appears that the trial court also misconstrued the nature of the SSI

payments at issue, as it opines that “Social Security derivative benefits can

be counted as “other income in the household” for purposes of determining

whether to deviate from child support guidelines. Silver v. Pinskey, 981

A.2d 284 (Pa.Super. 2009), Pa.R.C.P. 1910.16-5. J.Z.W. receives $752.00

per month in social security benefits through Mother, who is his current

representative payee.” TCO, at 12-13 (emphasis added). It is undisputed,

however, that J.Z.W. receives direct benefits because of his own disability,

and not derivative benefits, which would derive from a disability or death of

one of his parents.

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In support cases, “there is a rebuttable presumption that the amount of

an award for support which results from the application of the Support

Guidelines is correct.” Landis v. Landis, 691 A.2d 939, 941 (Pa.Super. 1997)

(citations omitted). Nevertheless, “where the facts demonstrate that this

award is unjust or inappropriate, the trier of fact has the discretion to rebut

that presumption and deviate from the guidelines.” Id. at 941 (citations

omitted).2 Therefore, while we agree with Father that SSI payments may at

times qualify as “other income in the household” such that a court may

consider them a basis for deviating from the support guidelines, our

jurisprudence nevertheless clearly limits a court’s discretion to do so to

instances where it is necessary to avoid an unjust or inappropriate result.

Under the record before us and for the reasons already expressed, we

discern nothing unjust or inappropriate in requiring Father to support his son

____________________________________________

2 Pa.R.C.P. 1910.16-5(b) provides that, in deciding whether to deviate from

the guideline support obligations, the trier of fact shall consider the following:

(1) unusual needs and unusual fixed obligations;

(2) other support obligations of the parties;

(3) other income in the household;

(4) ages of the children;

(5) assets of the parties;

(6) medical expenses not covered by insurance;

(7) standard of living of the parties and their children; and

(8) other relevant and appropriate factors, including the best

interest of the child or children.

Pa.R.C.P. 1910.16-5(b).

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commensurate with the guideline amount tailored to his obvious ability to pay.

As this Court has explained, a parent cannot evade his support obligation by

depleting his child's own assets, unless he is genuinely unable to provide for

the child's needs. Id. In light of Father's assets, it would be misleading to

assert that he is genuinely unable to provide for J.Z.W.’s needs such that a

downward deviation from the prescribed amount was warranted. Accordingly,

we conclude the trial court erred in factoring J.Z.W.’s assets in the decision to

effect a downward deviation of Father’s support payment.3

Mother’s third issue posits that the trial court erred in adopting the

Conference Officer’s calculation deducting from Father’s annual gross income

his three-year average annual payment on the $1,062,148.00 Promissory

Note he entered into in 2016 to purchase a 50% share of an ophthalmology

practice owned solely at the time by his current business partner. As observed

above, this adjustment reduced Father’s average annual income over the

three-year period from approximately $413,000.00 to $244,534.00. The final

average income also ignored the rapid escalation in Father’s annual income,

Mother maintains, as he had earned over $600,000.00 in 2018.

According to Mother, it was error to apply Father’s business loan to

calculations of his income, as Rule 1910.16-5 provides that a deviation for an

“unusual fixed obligation” may be applied to the amount of support, not to the

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3 Our resolution of Mother’s first issue in her favor obviates the need to

address her second issue, which she raised only in the event we denied her

relief under the first issue.

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obligor’s income. Allowable income deductions are provided, instead, in

Pa.R.C.P. 1910.16-2(c)(1), which provides that deductions from monthly

gross income may be taken only for income taxes, unemployment

compensation taxes and Local Services Taxes, mandatory union dues, and

alimony paid to the other party. The Rule’s Explanatory Comment states that

it “sets forth the exclusive list of the deductions that may be taken from gross

income in arriving at a party’s net income.” Id., Explanatory Comment

(2010). We, therefore, agree it was error to reduce Father’s income by

Father’s obligations to repay his business loan.

In Mother’s fourth issue, she contends it was also error for the court to

deem Father’s loan obligation as an “unusual fixed obligation” under Rule

1910.16-5(b)(1) qualifying him for an additional downward deviation from his

guideline support obligation. This is so, she contends, because the repayment

terms of Father’s Promissory Note were neither unusual nor fixed as would be

required to qualify him for a downward deviation under the Rule.

Specifically, Mother points to language in the note stating that it has no

fixed payment amount and no fixed payment dates, but that, instead, Father

may determine the payments “from time to time.” R.R. 477a, ¶ 2; RR 361a,

at 112: 17-19. Father counters with reference to the April 1, 2021 maturity

date of the Note, but Mother directs our attention to the related provision

stating “the maturity of this Promissory Note, or any payment due hereunder,

may be extended at any time or from time to time without releasing,

discharging, or affecting the liability of such party.” Id.

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Father’s own testimony was that from his monthly income he pays

himself $10,000, gives another $10,000 for taxes, and pays the remainder to

his business partner, with half going toward repayment of the loan and half to

taxes. As his income has risen every year and far exceeded $600,000 in both

2017 and 2018, the repayment plan Father described would have enabled him

to pay over $150,000 to his partner in repayment of the loan in each of those

years alone. We find such a loan repayment obligation, representing roughly

25% of Father’s income4 and having a projected pay-off date of under 7 years

from the time the note was executed, is hardly “unusual” by contemporary

borrowing standards. For this reason, alone, does Father’s loan fail to qualify

as a fixed and unusual obligation justifying a downward deviation, let alone a

deviation completely eliminating Father’s support obligation.

Finally, we address Mother’s contention that the court erroneously

included Father’s alimony payment of $800 in Mother’s income, but then also

identified the payment as one of J.Z.W.’s monthly assets, which, we agree,

would have unduly lowered Father’s support obligation by both increasing

Mother’s income in the parental income analysis and giving Father a dollar-

for-dollar reduction from his prescribed support obligation reflecting J.Z.W.’s

direct support payment. Our review of the record, however, shows that the

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4 There may be instances where a loan obligation amounting to 25% of the

obligor’s income represents such a significant burden, particularly where the

obligor is of modest means, that the loan qualifies as unusual and, thus,

warrants a downward deviation. The case sub judice, however, does not

present such an instance.

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Conference Officer and the trial court did not include the alimony payment in

their calculations of Mother’s income. See TCO, at 11-12. Therefore, we

reject Mother’s assertion that Father’s $800 payment was double-counted to

his undue advantage.

Turning to Father’s cross-appeal, we address his assertion that the

doctrines of collateral and equitable estoppel bar Mother from presenting her

claim for modification of the child support order for J.Z.W., as he contends

Mother is improperly attempting to relitigate child support for J.Z.W. after the

parties entered the MSA, which set Father’s fixed alimony payment for J.Z.W.’s

benefit. Our review of the record, party briefs, and the trial court’s opinion

lead us to discern no merit to Father’s claim. In this regard, we adopt the

rationale expressed in the trial court’s cogent and comprehensive Pa.R.A.P.

1925(a) Opinion, at pp. 15-18, to the extent it finds the MSA did not bar

subsequent review of Father’s continuing obligation to support J.Z.W.

Specifically, the court found that although J.Z.W. had been removed

from the support case in the April 6, 2011 Order of the Court entered in

recognition of the MSA, subsequent orders indicated that J.Z.W. does require

support. Estoppel did not apply to preclude court review of Mother’s petition,

the court reasoned, where the facts established J.Z.W.’s continued need for

support and the static nature of the MSA could very well work to J.Z.W.’s

prejudice:

The “[r]ight to support is a right of the child, not the mother or

father, and it cannot be bargained away before conception any

more than it can be bargained away after birth, nor can it be

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extinguished by principles of estoppel.” Kesler v. Weniger, 744

A.2d 794 (Pa. Super. 2000). Parents are permitted to make

agreements regarding child support, as long as the provisions are

fair and reasonable, made without fraud or coercion, and do not

prejudice the welfare of the children, but they do not have the

power to bargain away the rights of their children. Kraisinger v.

Kraisinger, 928 A.2d 333 (Pa. Super. 2007). . . . “When a child

support agreement between spouses gives less than required or

less than can be given to provide for the best interest of the

children, it falls under the jurisdiction of the court’s wide and

necessary powers to provide for that best interest; the parties’

bargain is at best advisory to the court and swings on the tides of

the necessity that the children be provided for.” Id., see also,

Gaster v. Gaster, 703 A.2d 513 (Pa. Super. 1997).

...

The plain, unambiguous language of the MSA states that flow of

support to J.Z.W. is non-modifiable and can be terminated prior

to the end of J.Z.W.’s life under certain conditions which have no

nexus to the support matter (i.e., Mother’s remarriage or

cohabitation). Furthermore, the amount is non-modifiable, which

is potentially prejudicial to J.Z.W. if his reasonable needs change

such that additional financial support is warranted. Thus under a

variety of potential scenarios, J.Z.W. could be substantially

prejudiced if his access to support from both of his parents is

terminated.

Trial Court Opinion, at 16-17, 18.

The court also found Father did not establish that he relied to his

detriment on the negotiated alimony provision in the MSA when entering into

his agreement to buy into the Ophthalmic surgery practice:

In Style v. Shaub, supra, the “[d]octrine of equitable estoppel

did not bar former wife from filing new request for child support

for adult child after pre-majority child support order was properly

terminated; there was no detrimental reliance on part of former

husband, the obligor, on termination of original order. See also,

Pa.R.C.P. No. 1910.19(e). . . . [Father] maintains that the MSA

should govern the support matter exclusively and the dismissal of

the support case should be affirmed on this basis. While Father’s

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assertion that he entered into business agreements in reliance

upon the terms of the MSA is credible, he has not convinced [the

trial court] that he relied to his detriment in doing so.

Trial Court Opinion, at 17.

To the extent that the court recognized the parties’ MSA does not, under

the facts, preclude a review of Father’s obligation to support J.Z.W., we

concur. Accordingly, we discern no error with the trial court’s decision denying

Father’s claim for relief on grounds of estoppel.

For the foregoing reasons, we vacate the support order entered below

and remand for a recalculation of Father’s child support obligations to J.Z.W.

consistent with the present decision. Order denying Father’s motion to bar

Mother’s petitions on the basis of collateral estoppel or equitable estoppel is

affirmed. Jurisdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/18/2020

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