Kutsch, D. v. Anthony, R.

J. S57003/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

DEBORAH A. KUTSCH, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. : No. 252 WDA 2016

:

RAYMOND D. ANTHONY :

Appeal from the Order Entered January 19, 2016,

in the Court of Common Pleas of Armstrong County

Civil Division at Nos. Docket Number 990342,

PACSES Case Number 571101351

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 15, 2016

Deborah A. Kutsch (“Mother”) appeals from the order entered in the

Court of Common Pleas of Armstrong County on January 19, 2016

sustaining, in part, and overruling, in part, her exceptions to the findings

and recommendations of the hearing officer and increasing the child support

obligation of Raymond D. Anthony (“Father”) to $572 per month, retroactive

to June 8, 2015, and deferring collection of Father’s arrearages until his

support obligation ends. We affirm.

The trial court set forth the following factual and procedural history:

[Mother] initiated this case by filing a

complaint for child and spousal support on August 9,

1999. The complaint regarded, in part, the parties’

minor child, [] [born] December [], 1997 (the

“Child”). On September 15, 1999, the Court entered

an interim support order with a monthly support

* Retired Senior Judge assigned to the Superior Court.

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obligation of $838.00, which included a basic

obligation of $788.00 together with $50.00 per

month in arrearages. [Mother’s] net monthly income

at that time was calculated to be $1,731.01 per

month, which included a substantial amount from

“USWA LOCAL 196.” [Father] was at that time

working full time for Allegheny Ludlum Corporation,

now Allegheny Technologies, Inc. (“ATI”). His

support payments were made via wage attachment.

On December 7, 1999, the Court further ordered

[Father] to pay $200.00 per month toward childcare

expenses based on the parties’ agreement to that

effect. Other than several routine orders for the

attachment of [Father’s] unemployment benefits, no

substantive activity occurred in the case for several

years. A divorce decree from Allegheny County was

cross-filed with this Court on December 27, 2004,

along with an accompanying agreement that, among

other things, terminated [Father’s] spousal support

obligation.

On January 25, 2005, [Father] filed a petition

to modify his support obligation. In his petition,

[Father] stated that [Mother] was terminated from

her employment on January 10, 2005, and therefore

his payment of childcare expenses was no longer

necessary. He also sought reimbursement for

certain overpayments of spousal support. An initial

conference was scheduled, but [Mother] failed to

appear. The Court accordingly terminated the

existing support order on February 17, 2005.

[Mother] requested a hearing de novo, at which the

parties appeared and “offered various stipulations of

fact and an agreed upon Order of Support.”

In the stipulations, the parties agreed, in part,

that 1) there had been no need for childcare

expenses since January 3, 2005; 2) [Father’s]

monthly net income was $3,100.00; 3) [Mother’s]

imputed monthly net income was $2,400.00; and

4) [Father’s] monthly child support obligation would

be $572.00, with no arrearages due. The

accompanying interim support order, dated

March 21, 2005 and entered March 23, 2005,

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includes these stipulations and also provides for the

allocation of unreimbursed medical expenses (57%

to [Father] and 43% to [Mother]) after the annual

payment of the first $250.00 of such expenses by

[Mother]. The agreed-upon support arrangement

remained in effect for the next several years, during

which [Father’s] payment obligation remained at

either $572.00 or $622.00 monthly.[Footnote 1]

[Footnote 1] The record does not

indicate why, at times, $50.00 in

arrearages were added onto [Father’s]

basic monthly support obligation of

$572.00. In the agreed-upon interim

order [dated] March 21, 2005,

arrearages were set at $0.00. In any

event, [Father’s] basic support obligation

remained at $572.00.

[Father] retired from ATI in 2008, after which

the necessary Qualified Domestic Relations Orders

(“QDROs”) were entered by the Court to ensure that

[Father’s] monthly support obligation would be paid

from his ATI pension. The QDROs were entered on

December 4, 2008 and February 2, 2009. [Father’s]

basic monthly support obligation did not change.

[Mother] filed a petition to modify the support

obligation on February 4, 2010. In her petition,

[Mother] states that the case had not been reviewed

in more than three years and that she was then

homeschooling the Child, who had been diagnosed

with Tourette Syndrome. After an initial conference

was held, the Court dismissed [Mother’s] petition,

finding that “there were no substantial changes in

circumstances to warrant a modification of current

support.” Neither party requested a hearing

de novo, and the case again [lay] dormant for

approximately the next five years.

[Father] filed the instant petition to modify on

June 9, 2015, in which he alleges that [Mother] did

not comply with the terms of the March 21, 2005

support order in that she 1) did not pay the first

$250.00 of annual unreimbursed medical expenses,

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and 2) did not pay 43 percent of the actual expenses

incurred for the Child’s orthodontic care. [Father]

paid 100 percent of these expenses and sought

reimbursement. After an initial support conference,

the Court determined that [Mother’s] imputed net

monthly income remained $2,400.00, and calculated

[Mother’s] actual net monthly income to be

$2,526.04. The monthly support obligation thus was

reduced to $495.00, which included $45.00 per

month in arrearages. The interim order is effective

as of the date the domestic relations section received

[Mother’s] petition, or June 8, 2015. [Mother]

requested a hearing de novo, which was conducted

by the Hearing Officer on August 31, 2015. Both

parties appeared at the hearing pro se.

In his findings, the Hearing Officer imputed to

[Mother] a net monthly income of $2,484.42 based

on her prior employment with the local union. The

Hearing Officer declined to reduce [Mother’s]

imputed income because he concluded that her

embezzlement activity, which resulted in criminal

charges and her employment termination, was

voluntary. The Hearing Officer calculated [Father’s]

net monthly income based on his monthly pension

benefit from ATI. The Hearing Officer declined to

consider certain household expenses submitted by

[Mother], concluding that the monthly obligation

generated by the support guidelines automatically

would include ordinary daily living expenses and that

none of the expenses submitted by [Mother] were

extraordinary. Finally, although the parties appeared

to agree that [Father] had not seen the Child in a

period of several years, the Hearing Officer did not

recommend a deviation from the guideline support

amount because he concluded that none of the

deviation factors set forth at Pa.R.Civ.P. 1910.16-5

were applicable. The Hearing Officer ultimately

recommended a monthly support obligation of

$495.00, including $45.00 toward arrearages. An

interim order of court reflecting this amount was

entered on September 21, 2015.[Footnote 2]

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[Footnote 2] At the de novo hearing,

[Father] stated that the issue giving rise

to his modification petition, namely, the

reimbursement of certain medical

expenses, had been resolved by

agreement of the parties prior to the

hearing.

[Mother] filed timely exceptions on October 7,

2015, wherein she raised 31 issues regarding the

Hearing Officer’s alleged bias against her, the

calculation of her earning capacity, the calculation of

[Father’s] net monthly income, the Hearing Officer’s

credibility determinations, the Hearing Officer’s

failure to deviate from the guideline support amount,

and certain of the Hearing Officer’s evidentiary

rulings. At argument, [Mother], who was then

represented by counsel, agreed that her exceptions

reduced essentially to the following: 1) the

imputation to her of a $35,000.00 annual salary,

2) the failure of the Hearing Officer to make an

upward deviation in the support obligation based on

the lack of time [Father] has spent with the Child,

and 3) the Hearing Officer’s refusal to attribute

additional income to [Father].

The Court overruled in part, and sustained in

part, [Mother’s] exceptions. The Court found no

error or abuse of discretion by the Hearing Officer in

his calculations of the parties’ imputed and actual net

monthly incomes. The Court did, however, conclude

that an upward deviation in the support obligation

was warranted due to [Father’s] having spent no

time with the Child for several years. The Court

therefore ordered that the support obligation be

increased back to its former amount of $572.00 per

month, retroactive to June 8, 2015. The Court also

made any arrearages payable after the basic support

obligation ends.[Footnote 3] This appeal followed.

[Footnote 3] The Child reached 18 years

of age on December 1, 2015. He will

graduate from high school in or about

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June 2016. The support obligation

presumably will terminate at that time.

Trial court opinion, 3/17/16 at 1-7 (citations to record omitted; emphasis in

original).

Mother raises the following issues for our review:

I. Whether the Court committed an error of law

and/or abused its discretion in failing to use its

authority to remand this case for a full

evidentiary hearing into [Father’s] finances for

the past fifteen years and to order support be

recalculated retroactively based on those

findings?

II. Whether the Court committed an error of law

and/or abused its discretion in basing

[Father’s] support obligation on his post

retirement income rather than on the income

he was earning prior to his early, voluntary

retirement?

III. Whether the Court committed an error of law

and/or abused its discretion in assigning

[Mother] a $35,000.00 earning capacity

without taking all factors into consideration?

IV. Whether the Court committed an error of law

and/or abused its discretion by failing to

consider Rule 1910.16-6 in regard to the

child’s extracurricular expenses and in failing

to order [Father] to reimburse [Mother] for his

proportionate share of those expenses?

V. Whether the Court committed an error of law

and/or abused its discretion by failing to

consider and give proper weight to all things

that affect the best interest of the child in this

case?

Mother’s brief at 4.

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When reviewing a child support order, we employ the following

standard of review:

[T]his 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.

W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa.Super. 2014) (citations omitted). A

finding of an abuse of discretion must rest upon a showing by clear and

convincing evidence, and the trial court will be upheld on any valid ground.

Baehr v. Baehr, 889 A.2d 1240, 1243 (Pa.Super. 2005). Additionally, the

fact-finder, having heard the witnesses, is entitled to weigh the evidence and

assess its credibility. Id. at 1245.

Mother first complains that the trial court abused its discretion in

failing to remand the case back to the hearing officer for “a full evidentiary

hearing into [Father’s] finances for the past [15] years and to order support

be recalculated retroactively based on those findings.” (Mother’s brief at

18.) Mother’s argument on this issue sets forth nothing more than her

displeasure with the January 19, 2016 support order that is the subject of

this appeal and her desire for a “do-over.” She complains that “[t]hroughout

the de novo hearing, [Father’s] testimony continued to be inconsistent[,

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but] [e]ven so, the lower court has continued to give him credibility.”

(Mother’s brief at 25.) She then rehashes Father’s testimony and claims an

abuse of discretion because the fact-finder did not weigh the evidence as she

wished and made credibility determinations that she disliked. Our role as an

appellate court is not to reweigh the evidence and/or reassess credibility

determinations. See id. We, therefore, decline Mother’s invitation to do so.

Mother next complains that the trial court abused its discretion when it

based Father’s support obligation on his post-retirement income rather than

on the income that he earned prior to his retirement, which, Mother

contends, was voluntary. To support her contention, Mother cites Smedley

v. Lowman, 2 A.3d 1226 (Pa.Super. 2010), for the blanket proposition that

when a parent has a support obligation and takes an early retirement, that

parent voluntarily reduces his or her income, and therefore, the support

obligation cannot be decreased. (See Mother’s brief at 27-28.)

The facts of Smedley, however, differ from the facts of this case. In

Smedley, the father voluntarily retired at age 52, despite being in good

health and being capable of continued employment. Smedley, 2 A.3d at

1227-1229. Here, the record reflects that Father was employed as a truck

driver and retired when he was approximately 55 years old.1 (Notes of

testimony, 8/31/15 at 6.) Father testified that he retired because he needed

1

The record reflects that Father was born on December 26, 1953, and

retired in 2008.

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hip replacements and could no longer perform his job duties. (Id.)

Therefore, unlike Smedley, Father’s testimony, found credible by the

fact-finder, established that Father was not in good health and not capable

of continued employment when he retired. Consequently, Mother’s reliance

on Smedley for the blanket proposition that an early retirement equates to

a voluntary retirement is misguided.

We also note that Father’s current support obligation of $572 per

month was set in 2005 and was based on Father’s pre-retirement income.

(Interim order of court, filed 3/23/05.) Therefore, Mother has no grounds to

complain about the basis for the support obligation. Consequently, this

claim lacks merit.

Mother next complains that the trial court abused its discretion when it

assigned her an earning capacity of $35,000 “without taking all factors into

consideration.” (Mother’s brief at 30.) The record reflects that Mother was

terminated from her job as a secretary at a local union in January 2005

because she was charged with and convicted of embezzlement. Following

her termination from employment, Father filed a modification petition.

Thereafter, the parties stipulated to an imputed income for Mother of $2,400

per month. (Hearing officer’s findings and recommendations, filed 3/23/05;

see also interim order of court, filed 3/23/05.) The record further reflects

that although Mother filed a petition for modification on February 1, 2010,

the trial court found no substantial changes to warrant a modification, and

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Mother did not seek a de novo hearing. (Order denying petition to modify,

2/26/10; notice of right to request a hearing, 2/26/10.)

Mother now complains that she should not be assigned an annual

earning capacity of $35,000. In support, she cites Novinger v. Smith, 880

A.2d 1255 (Pa.Super. 2005), for the proposition that when a parent loses

employment due to an “infraction,” that parent should not have to pay

forever for losing that employment. (Mother’s brief at 31.) Although Mother

correctly sets forth that part of the Novinger opinion, Mother ignores the

part that distinguishes losing a job due to an “infraction” such as tardiness

from losing a job due to criminal behavior such as her own felonious

embezzlement activities.

Our courts have held that those seeking reductions in support

obligations due to criminal behavior that results in incarceration will not be

rewarded for that behavior, and upon release, must start paying their

arrears. See Novinger, 880 A.2d at 1257; see also Yerkes v. Yerkes,

824 A.2d 1169 (Pa. 2003) (finding that incarceration is not a change in

circumstances that can be used to modify a support order). The policy

behind this rule is that imprisonment and its resulting reduction in income

are foreseeable consequences of criminal activity akin to voluntary

unemployment. Yerkes, 824 at 306. Taking this to its logical extension as

it applies here, it was foreseeable to Mother that her embezzlement could

lead to job loss and a criminal conviction that could severely impede her

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ability to secure future employment. As such, Mother’s reduction in income

was in her control and she cannot now be rewarded for her criminal activity

by using it as a change in circumstances to reduce her imputed earning

capacity. Therefore, this claim lacks merit.

Mother next complains that the trial court abused its discretion when it

failed to consider Pa.R.Civ.P. 1910.16-6 in denying her request for an

upward deviation in Father’s support obligation because of the Child’s

extracurricular expenses. Pennsylvania Rules of Civil Procedure 1910.1

through 1910.50 govern support actions. In deciding whether to deviate

from the amount of support determined by the guidelines, the trier-of-fact

must consider, among other things, the Child’s unusual needs and unusual

fixed obligations. Pa.R.Civ.P. 1910.16-5. Here, Mother concedes that

Rule 1910.16-5 “may not apply.” (Mother’s brief at 34.) Consequently,

Mother concedes that the expenses that she set forth are not “unusual

needs” and/or “unusual fixed obligations.”

Instead, Mother argues that Rule 1910.16-6 applies. Under that rule,

childcare expenses, health insurance premiums, unreimbursed medical

expenses, private school tuition, and mortgage payments may warrant an

adjustment to the basic support obligation. The expenses that Mother sets

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forth,2 however, bear no relationship to the enumerated expenses set forth

in Rule 1910.16-6. Therefore, Mother’s claim that the trial court abused its

discretion for failing to consider an inapplicable rule to determine that an

upward adjustment was not warranted cannot, and does not, constitute an

abuse of discretion. Consequently, this claim lacks merit.

Mother finally complains that the trial court abused its discretion by

failing to consider the best interests of the Child. Mother argues: “By

reviewing the case history and questioning [Father] during the de novo

hearing and argument, [Mother] has clearly and convincingly shown the

inconsistencies in [Father’s] testimony, yet the lower court has chosen to

ignore them. [Mother] beseeches that this Honorable Court not do the

same.” (Mother’s brief at 36.) Once again, Mother invites us to reweigh the

evidence and reassess the fact-finder’s credibility determinations. Once

again, we decline her invitation to do so because that is not our role as an

appellate court. See Baehr, 889 A.2d at 1243.

Order affirmed.

2

In addition to household expenses, Mother sets forth certain of the Child’s

expenses for the “previous 12 months,” including test fees, purchase of a

vehicle, traveling expenses related to the Child’s participation in Boy Scouts,

lacrosse expenses, cell phone, car insurance, vet bills for the Child’s dog,

and school lunches. (Notes of testimony, 8/31/15 at Exhibits 2 and 3.)

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/15/2016

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