Opinion
618 WDA 2020
05-28-2021
KIMBERLY S. ALFIERI v. THOMAS M. ALFIERI Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 21, 2020 In the Court of Common Pleas of McKean County Civil Division at No(s): DR59-11
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM
LAZARUS, J.
Thomas M. Alfieri (Father) appeals from the order, entered in the Court of Common Pleas of McKean County, denying his petition for modification of support. After careful review, we find Father's claims are meritless. We affirm based on the opinion authored by the Honorable Christopher G. Hauser.
Contrary to the briefing requirements set forth in Chapter 21 of the Pennsylvania Rules of Appellate Procedure, Father has neglected to include in his brief a Statement of Jurisdiction, see Pa.R.A.P. 2114, or the Order or Other Determination in Question. See Pa.R.A.P. 2115. "The verbatim text of the order or other determination under review is added as a principal element of appellant's brief[.]" Pa.R.A.P. 2115 - Explanatory Comment.
Father and Kimberly S. Alfieri (Mother) were married on May 6, 2000. They are the parents of three children, now ages 14, 17 and 20. The parties separated in 2011, and the court entered a final decree of divorce on January 17, 2014. The parties reached an agreement for a 50-50 shared custody arrangement, which the court adopted as an order on August 3, 2012.
Mother has not filed an appellee's brief.
Father is a retired schoolteacher. Mother, formerly a schoolteacher, is currently a guidance counselor in the Otto Eldred School District. Both parties have pensions through the Public School Employees' Retirement System (PSERS).
The marital portion of Husband's pension was valued at $149, 789.38; the marital portion of Wife's pension was valued at $46, 098.68.
Father's primary source of income is his pension, although he also earns a small income from coaching sports. Father had been paying Mother child support in the amount of $487.30 per month. He retired in May 2019 and, on October 11, 2019, filed a petition to modify support based on changed circumstances. The court granted Father's petition and reduced his obligation to $25.27 per month. Father filed exceptions, which the trial court denied.
On appeal, Father raises the following issues:
1. Did the family law master and trial court commit error in calculating [Father's] gross monthly income by including pension payments as income for purposes of child support where the pension had been appraised as an asset and divided in equitable distribution?
2. Did the family law master and trial court commit error in concluding that Pennsylvania law permits the double counting of an asset, which had been divided in equitable distribution, to then again be counted as income for purposes of child support?
3. Did the family law master and trial court commit error in considering non-marital portions of [Father's] pension for purposes of child support calculations, where the non-marital
portions of the pension were expressly considered by the [c]ourt in the equitable distribution award pursuant to 23 Pa.C.S.A. § 3502(8)?
4. Did the family law master and trial court commit error in failing to even consider or to award [Father] child support where it is not disputed that [Mother] has a higher income than [Father] and the parties have a 50-50 custody schedule?
5. Did the family law master and trial court commit error in holding that it had no authority to award child support to [Father] because he had not filed a separate support complaint?
6. Did the family law master and trial court commit error in failing to follow Pa.R.C.P. 1910.5. and Pa.R.C.P. 1910.16-4(c)(2) which state that a child support order may be entered against either party without regard to which party initiated the action?Appellant's Brief, at 1-2.
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.Mencer v. Ruch, 928 A.2d 294, 297 (Pa. Super. 2007) (quoting D.H. v. R.H., 900 A.2d 922, 927 (Pa. Super. 2006)). To the extent the issues involve interpretation and application of the Rules of Civil Procedure, which are questions of law, we employ a de novo standard of review and plenary scope of review. Hanrahan v. Bakker, 186 A.3d 958, 966 (Pa. 2018).
In his first three issues, Father argues the court's calculation of his monthly income available for support was in error, as the "pension payments had been valued previously and divided in equitable distribution." Appellant's Brief, at 7. He claims that counting his pension payments as income available for support constituted "double dipping," in contravention of this Court's holding in Hess v. Hess, 212 A.3d 520 (Pa. Super. 2019). Id. In his last three issues, Father argues that since his monthly income is less than Mother's, and the parties have a 50-50 custody arrangement, he is entitled to a child support award and the court's finding that Father had to file a separate complaint in support, was error. Appellant's Brief, at 8.
Father's argument that the court "double dipped" ignores the fact that the calculation considered pension payments that were non-marital property. In Hess, supra, we stated, "this Court has repeatedly held that an asset awarded in equitable distribution may not be included in an individual's income for purposes of calculating support payments." Hess, 212 A.3d at 524, citing Miller v. Miller, 783 A.2d 832, 835-836 (Pa. Super. 2001). As the trial court explained here, Father's pension was based on forty years of teaching, and the marital portion of that pension was only ten years. The pension payments Father receives now "reflect only non-marital assets." See Trial Court Opinion, 8/14/20, at 5.
In his final three issues, Father contends that he should not be obligated to pay support where (1) the parties share custody equally and (2) his income is lower than Mother's. He also argues that he is entitled to a child support award retroactive to the October 11, 2019, the date that he filed his petition for modification. See Appellant's Brief, at 8, 23.
Pennsylvania Rule of Civil Procedure 1910.16-4(c)(2) provides, in relevant part:
Without regard to which parent initiated the support action, when the children spend equal time with their parents, the Part II formula cannot be applied unless the obligor is the parent with the higher income. An order shall not be entered requiring the parent with the lower income to pay basic child support to the parent with the higher income. However, this subdivision shall not preclude the entry of an order requiring the parent with less income to contribute to additional expenses pursuant to Pa.R.C.P. No. 1910.16-6.Pa.R.C.P. 1910.16-4(c)(2) (emphasis added). Father neglects to recognize that his monthly obligation of $25.27 is his contribution to the children's health insurance premium, an additional expense under Pa.R.C.P. 1910.16-6. See Trial Court Opinion, supra at 9.
With respect to Father's claim that he is entitled to child support, the trial court stated Father was required to file a separate child support action. It was the court's understanding that "this limitation is imposed by the Pennsylvania Automated Child Support Enforcement System (PACSES)[, ]" and the hearing officer "could not recommend support for [Father] during that proceeding because the software does not allow that." Id. at 10. Father is free to file a child support action.
Pennsylvania does not charge any filing fees to file for child support. See https://www.humanservices.state.pa.us/CSWS/program_controller.aspx (last visited 5/19/21). See also www.childsupport.state.pa.us (last visited 5/19/21).
We affirm based on Judge Hauser's opinion. The parties are ordered to attach a copy of that opinion in the event of further proceedings.
Order affirmed.
Judgment Entered.