Opinion
J. S16042/14 No. 1414 MDA 2013
03-28-2014
G.M.T, Appellant v. S.A.K., Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered July 11, 2013,
in the Court of Common Pleas of York County,
Domestic Relations at No(s): 02269 SA 2008
BEFORE: BENDER, P.J.E., DONOHUE, and STRASSBURGER, JJ. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
G.M.T. (Mother) appeals from the support order entered by the trial court on July 11, 2013. After review, we affirm in part, vacate in part, and remand for proceedings consistent with this memorandum.
Mother and S.A.K. (Father) are the parents of one child (Child), born in May 1995, who is the subject of the instant support action. An initial support order was entered on February 20, 1998. In March 2012, Mother filed a petition for modification of the support order, which was dismissed by the conference officer. Mother filed for de novo review, and the trial court conducted a hearing on June 7, 2012. The trial court concluded that Mother had an earning capacity of $11.75 per hour for a 40-hour workweek and also determined that she was not entitled to an upward deviation from the support guidelines.
Mother timely filed a notice of appeal from that order claiming that the trial court erred in calculating her earning capacity and denying her an upward deviation. A panel of this Court affirmed the trial court's determination with respect to Mother's earning capacity, but vacated the portion of the order with respect to the upward deviation, and remanded the case to the trial court for "consideration of whether Mother is entitled to an upward deviation based on Father's failure to exercise his visitation rights to Child and/or an increase in expenses for Child." G.M.T. v. S.A.K., 81 A.3d 1007 (Pa. Super. 2013) (unpublished memorandum at 9).
On July 8, 2013, the trial court held a hearing on these issues, which included testimony from Mother, J.M. (Maternal Grandmother), Father, and B.K. (Father's Wife). In an order dated July 8, 2013, and filed on July 11, 2013, the trial court denied Mother's request for an upward deviation. Mother timely filed a notice of appeal from that order, and both Mother and the trial court complied with Pa.R.A.P. 1925.
Mother states one question for our review.
Whether the [trial court] erred in denying an upward deviation based on [Father's] failure to exercise 30 percent visitation by considering only the factors in [Pa.R.C.P. 1910.16-5,] under the compulsion of the language of the rule and of the Superior Court, thereby disregarding application of the 2010 explanatory comment to [Pa.R.C.P. 1910.16-4].Mother's Brief at 4 (capitalization omitted).
We set forth our well-settled standard of review and applicable principles of law with respect to a support order.
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.Silver v. Pinskey, 981 A.2d 284, 291 (Pa. Super. 2009) (quoting Mencer v. Ruch, 928 A.2d 294, 297 (Pa. Super. 2007)).
Actions for support are governed by Pennsylvania Rules of Civil Procedure 1910.1 through 1910.50. At issue here are several of these provisions.
First, Pa.R.C.P. 1910.16-1(d) provides:
If it has been determined that there is an obligation to pay support, there shall be a rebuttable presumption that the amount of the award determined from the guidelines is the correct amount of support to be awarded. The support guidelines are a rebuttable presumption and must be applied taking into consideration the special needs and obligations of the parties. The trier of fact must consider the factors set forth in Rule 1910.16-5. The presumption shall be rebutted if the trier of fact makes a written finding, or a specific finding on the record, that an award in the amount determined from the guidelines would be unjust or inappropriate.
Pa.R.C.P. 1910.16-1(d). This rule directs us to Pa.R.C.P. 1910.16-5, which provides, as follows.
(a) Deviation. If the amount of support deviates from the amount of support determined by the guidelines, the trier of fact shall specify, in writing or on the record, the guideline amount of support, and the reasons for, and findings of fact justifying, the amount of the deviation.Pa.R.C.P. 1910.16-5.
Note: The deviation applies to the amount of the support obligation and not to the amount of income.
(b) Factors. In deciding whether to deviate from the amount of support determined by the guidelines, the trier of fact shall consider:
(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) the relative assets and liabilities of the parties;
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their children;
(8) in a spousal support or alimony pendente lite case, the duration of the marriage from the date of marriage to the date of final separation; and
(9) other relevant and appropriate factors, including the best interests of the child or children.
Finally, Pa.R.C.P. 1910.16-4 provides the standard calculation to be used to determine the share of support allocated to each party. The 2010 Explanatory Comment to this rule states the following.
The basic support schedule incorporates an assumption that the children spend 30% of the time with the obligor and that the obligor makes direct expenditures on their behalf during that time. Variable expenditures, such as food and entertainment that fluctuate based upon parenting time, were adjusted in the schedule to build in the assumption of 30% parenting time. Upward deviation should be considered in cases in which the obligor has little or no contact with the children. However, upward deviation may not be appropriate where an obligor has infrequent overnight contact with the child, but provides meals and entertainment during daytime contact. Fluctuating expenditures should be considered rather than the extent of overnight time. Downward deviation may be appropriate when the obligor incurs substantial fluctuating expenditures during parenting time, but has infrequent overnights with the children.Pa.R.C.P. 1910.16-4 explanatory comment (2010).
On appeal, Mother argues that the trial court erred in denying her an upward deviation. The trial court was directed on remand to consider two separate questions: 1) whether Mother was entitled to an upward deviation based upon Father's failure to exercise custody; and, 2) whether Mother was entitled to an upward deviation based upon the deviation factors. G.M.T. v. S.A.K., supra. The trial court offered the following with respect to denying Mother's request for an upward deviation.
In this matter, [M]other is requesting an upward deviation to reflect that Father does not have any rights of custody with respect to [Child] and also that she has expended funds on behalf of [Child] which she believes are extraordinary. Those being prom-related expenses, although no figure was given; cell phone expenses, although no figure was given; purchase of an automobile; college expenses, specifically applications to ten colleges which totaled $590; a laptop computer; and a calculator.Trial Court Opinion, 7/11/2013, at 3-4.
***
The [trial court] has considered those deviation factors that were outlined by statute. With respect to those factors, we note that neither party has any unusual needs or fixed obligations. Mother has no other children, but Father has two other minor children that live with him and his wife. Neither party has any other type of income or significant asset which was not considered in calculating the underlying support order. Father's wife does work part-time. Neither party has any medical expenses not covered by insurance.
Moreover, the expenses for which Mother seeks reimbursement are not unusual in that most seniors in high school have the same expenses. Second, Father has given $650 as gifts to the child over the past year. These funds could be used to off-set the expenses. Also, until recently, [Child] was working part-time and, as such, would be able to make some contribution as well. Mother states that she would like some reimbursement for the car and laptop, but also testified that those were gifts given to him.
Instantly, the trial court looked at the deviation factors outlined in Pa.R.C.P. 1910.16-5 and concluded that Mother was not entitled to an upward deviation on that basis. We find no abuse of discretion.
At the hearing, Mother testified to the following specific extraordinary expenses for Child - a senior yearbook; senior pictures; school lunches; application fees to colleges; visits to those colleges; fees, including a study guide, for the SAT and ACT; a $200 calculator; orthodontic expenses; and, prom expenses. N.T., 7/8/2013, at 47-51. Additionally, Mother testified that her brother purchased a laptop for Child because she could not afford to purchase one. Id. at 51. She offered conflicting testimony as to whether she purchased a car for Child. She testified that she "did purchase it." Id. at 52. She then testified that "it was a gift, but I gave [it to] him, it wasn't really technically a gift. I felt I needed to give something toward it." Id.
We also point out that at the time Mother asked for an upward deviation Child was almost 17 years old. While we recognize that it costs more to feed and clothe a 17 year old than it does a younger child, this fact is offset by Father's responsibility for his two younger children who live with him. Thus, based on our review of this testimony, as well as the trial court's proper reliance on the factors set forth in Pa.R.C.P. 1910-16.5, we conclude the trial court did not abuse its discretion in determining that Mother was not entitled to an upward deviation for these expenses.
However, the trial court's analysis is completely devoid of any reason why it did not award Mother an upward deviation based upon the fact that Father does not exercise custody. Although the trial court is not required to award this upward deviation, it was required to consider the fact that because Father exercises no visitation with Child, Mother must pay all variable living expenses for Child. As the Comment states,
[t]he basic support schedule incorporates an assumption that the children spend 30% of the time with the obligor and that the obligor makes direct expenditures on their behalf during that time. Variable expenditures, such as food and entertainment that fluctuate based upon parenting time, were adjusted in the schedule to build in the assumption of 30% parenting time.Pa.R.C.P. 1910.16-4 explanatory comment (2010). Thus, Mothers' child support award included an assumption that Father was providing for Child's living expenses up to 30% of the time. In this case, there was no dispute that Father did not do so. Thus, we must vacate the portion of the order denying an upward deviation on this basis, and remand to the trial court to consider whether Mother is entitled to an upward deviation solely on the basis that Father did not exercise 30% custody.
Order affirmed in part, vacated in part, and remanded for proceedings consistent with this memorandum. Jurisdiction relinquished. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary