Opinion
J-A21032-16 No. 3470 EDA 2015
09-28-2016
MEGEN KARAKELIAN v. JORDAN LaVINE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered October 27, 2015 in the Court of Common Pleas of Delaware County, Domestic Relations Division, No(s): PACSES 018113330 BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Jordan LaVine ("Father"), pro se, appeals from the Order entered by the trial court establishing his child support obligations in connection with his divorce from Megen Karakelian ("Mother"). We affirm.
The parties have three minor children (hereinafter "the children").
In its Opinion, the trial court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See Trial Court Opinion, 1/12/16, at 1-6.
On appeal, Father raises the following issues for our review:
1. Did the trial court err in calculating [Father's] net income for child support purposes at $41,027.00 per month, based on the court's failure to deduct: (a) [Father's] full 2015 [f]ederal tax liability; (b) any Medicare or Social Security taxes owed or paid by [Father]; and (c) any alimony payments made by [Father] to [Mother] in 2015; to derive this net income, in contravention of Pa.R.C.P. 1910[.]16-2[?]
2. Did the trial court err in assigning [Mother] an annual earning capacity of $10,000 (less than minimum wage), although she
is an attorney with seven years of litigation experience, previously earned $52,00[0]-$63,000 when she was last working, has 50% custody, with the parties' children all in full day school, has had almost 5 years since separation to get back in the workforce, and has made no effort to obtain employment during that time frame?Father's Brief at 5-6.
3. Did the court below err in not holding an evidentiary hearing, not considering or apparently reviewing the brief and exhibits [Father] submitted in advance of the hearing and during the October 22, 2015 hearing (including an expert report on [Mother's] earning capacity and [Father's] W[-]2-which the court stated were not provided), and not taking evidence on other factors relevant to the determination of the correct support amount?
4. Did the trial court err in concluding that [Father's] new spouse's income justified an upwards deviation, although [Mother] never even made that argument, there was no evidence in the record supporting that conclusion, and the law cited by the court on that point was not good law?
5. Did the trial court err in concluding that no adjustment was required for shared custody in high income cases, although [Mother] never even raised that argument, there was no evidence in the record supporting that conclusion, and the law cited by the court on that point was not good law?
When evaluating a [child] 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.Kimock v. Jones , 47 A.3d 850, 854 (Pa. Super. 2012) (citations omitted). Additionally, the fact-finder, having heard the witnesses, is entitled to weigh the evidence and assess its credibility. Baehr v. Baehr , 889 A.2d 1240, 1245 (Pa. Super. 2005).
Support orders "must be fair, non-confiscatory and attendant to the circumstances of the parties." Fennell v. Fennell , 753 A.2d 866, 868 (Pa. Super. 2000) (citation omitted). "[I]n determining the financial responsibilities of the parties to a dissolving marriage, the court looks to the actual disposable income of the parties." Id. (citation omitted). "[W]hen determining income available for child support, the court must consider all forms of income." Berry v. Berry , 898 A.2d 1100, 1104 (Pa. Super. 2006) (citation omitted); see also Pa.R.C.P. 1910.16-2(a).
In his first issue, Father contends that the trial court acknowledged that, pursuant to Pa.R.C.P. 1910.16-2, alimony, Social Security taxes and Medicare taxes should be deducted from a parent's income in order to determine that parent's net income, but nevertheless failed to deduct these items when determining Father's net income. Father's Brief at 22. Father points to the trial court's determination, as stated in its Pa.R.A.P. 1925(a) Opinion, that Father waived this issue because he failed to specifically request these deductions during the hearing, and asserts that this issue is not waived because the court was required to consider all relevant evidence when determining his earning capacity. Id. at 22, 24-25. Father also claims that contrary to the trial court's ruling that Father failed to formally move his W-2 into evidence, "[t]he trial court had [Father's] W-2 and it was referenced during the hearing." Id. at 22. Father argues that the trial court further erred by ruling that it could disregard Father's alimony payments to Mother because such payments had ceased as of the date of the support hearing. Id. Father additionally challenges the trial court's determination that Father failed to provide the court with any meaningful calculations, and contends that he provided the court with support calculations, performed with software, which included the alimony, Social Security tax, Medicare tax, and estimated federal tax deductions. Id. at 22-23. Father asserts that he did not know that these deductions were not made by the trial court until after the support hearing, and that he brought the error to the trial court's attention before the support Order was entered. Id. at 23. Father claims that, because the trial court failed to consider these deductions, it improperly calculated his net income. Id. at 25-26.
The trial court addressed Father's first issue, set forth the relevant law, and concluded that it lacks merit. See Trial Court Opinion, 1/12/16, at 9-11. We discern no abuse of discretion by the trial court in making its determination, which is supported by the record, and affirm on this basis as to Father's first issue. See id.
In his second issue, Father contends that the trial court erred in assigning Mother's earning capacity at $10,000 per year. Father's Brief at 28. Father concedes that Mother was unemployed for a portion of their marriage, but asserts that Mother has remained unemployed since their separation in 2011. Id. Father claims that, if Mother wishes to remain unemployed, then Father and his current wife should not be "required to subsidize [Mother's] unilateral decision indefinitely." Id. Father argues that the trial court should not have considered Mother's post-separation unemployment when determining the length of time Mother has been "out of the market" as an attorney. Id. Father contends that the trial court did not want to consider his expert report on Mother's earning capacity, and "provided no justification for choosing $10,000 [per year] as [Mother's] earning capacity." Id. at 29-30. Father also contends that the trial court failed to consider Mother's significant assets, including her investment account and stock gains. Id. at 30-31. Father asserts that the trial court's assignment of Mother's earning capacity at $10,000 per year discourages Mother from working. Id. at 31.
Father also challenges the trial court's consideration of Mother's care of the children during Father's custodial time when determining her earning capacity, and claims that both parties have helped out with the children during the other parent's custodial time. Id. Father argues that the trial "court's conclusion is particularly inappropriate in this case because [Father and current wife] already employ a full time childcare giver." Id. at 32 (emphasis in original). Father contends that "the children would be better served by [Mother] working." Id.
The trial court addressed Father's second issue and concluded that it lacks merit. See Trial Court Opinion, 1/12/16, at 11-12. We discern no abuse of discretion by the trial court in making its determination, which is supported by the record, and affirm on this basis as to this issue. See id .; see also Baehr , 889 A.2d at 1245.
In his third issue, Father contends that the trial court deviated from the Guideline amount without supporting evidence or findings of fact. Father's Brief at 33. Father asserts that the matter was scheduled for an oral argument and not for an evidentiary hearing. Id. at 34. Father claims that the trial court "did not indicate that it had reviewed [Father's] brief and exhibits, was willing to hear witness testimony, or was willing to hold an evidentiary hearing." Id. Father argues that an evidentiary hearing should have been held because the trial court deviated from the Guideline amount for support. Id. Father contends that, during the support hearing, he was not given a chance to cross-examine Mother, and that he referenced several documents that were not acknowledged or reviewed by the trial court. Id .
Father seemingly argues that this Court should consider issues that he initially raised in his Motion for Reconsideration, which the trial court denied. Father's Brief at 35. However, Father concedes that the trial court's Order denying his Motion for Reconsideration is a non-appealable Order. Id.
Father did not raise this issue in his court-ordered Pa.R.A.P. 1925(b) Concise Statement. See Krebs v. United Ref. Co. of Pennsylvania , 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in his concise statement of errors complained of on appeal). Therefore, it is waived.
Even if Father had not waived this issue, we would have determined that it lacks merit. Indeed, our review of the record reveals no abuse of discretion in the trial court's determination, which is amply supported by the record. See Trial Court Opinion, 1/12/16, at 1-6 (wherein the trial court provided a thorough explanation of the admissible and inadmissible evidence presented by the parties, detailed the evidence it considered in making its determinations, and listed its findings of fact).
In his fourth issue, Father contends that the trial court erred in finding that his current wife's income ($165,000 per year) justified an upwards deviation. Father's Brief at 35-37.
Father did not raise this issue in his Concise Statement. Therefore, it is waived. See Krebs , supra .
Even if Father had not waived this issue, we would have determined that it lacks merit for the reasons expressed by the trial court. See Trial Court Opinion, 1/12/16, at 11.
In his fifth issue, Father contends that the trial court erred by determining "that shared custody need not be considered in high income cases." Father's Brief at 37-38.
Father did not raise this issue in his Concise Statement. Therefore, it is waived. See Krebs , supra .
Even if Father had not waived this issue, we would have determined that it lacks merit for the reasons expressed by the trial court. See Trial Court Opinion, 1/12/16, at 11; see also Pa.R.C.P. 1910.16-4(c)(2) (providing that the trier of fact may enter a support order against either party based upon the evidence presented).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/28/2016
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