Opinion
No. 731 MDA 2007.
Filed: April 17, 2008.
Appeal from the Order entered April 20, 2007, In the Court of Common Pleas of Dauphin County, DOMESTIC RELATIONS AT No(s): 2587 DR 99 PACSES #700101608.
BEFORE: STEVENS, ORIE MELVIN, and BENDER, JJ.
¶ 1 Ralph B. Pinskey (Father) appeals pro se from the support order entered by the Court of Common Pleas of Dauphin County on April 20, 2007, which, inter alia, directed him to split Social Security benefits with Roberta L. Silver (Mother). We vacate, in part, and remand in accordance with the following decision.
Both Father and Mother are practicing attorneys; and, Father is representing himself in the present matter.
¶ 2 A review of the record reveals the following relevant facts and procedural history: Father and Mother were married in 1991, are the parents of two children, ages fifteen and eleven, and separated in 1998. Following the parties' separation, Mother maintained primary physical custody of the children until January 1, 2007, at which time Father and Mother began to equally share physical custody pursuant to a written agreement executed on December 1, 2006. Mother obtained a child support order against Father in 1999, which was later modified on May 18, 2006. At the time of the modification, Father was receiving Social Security benefits (benefits). Mother, who was the primary caregiver and was designated by the Social Security Administration (SSA) as the representative payee for the children, was receiving $1,128 per month in benefits for the children. ¶ 3 On December 5, 2006, Father filed a petition to terminate the May 18, 2006 support order based on the anticipated change in custody, namely the equal sharing of physical custody. In addition, Father contacted the SSA and requested that he be designated the representative payee of the benefits for the children. This request was subsequently granted by the SSA. On December 12, 2006, Mother petitioned the court for an increase in support due to Father's alleged increase in income and earning capacity and the children's increased expenses.
The May 18, 2006 order, effective June 14, 2006, directed Father to pay child support in the amount of $392 per month plus $50 per month in arrears.
¶ 4 Following a support conference held on January 12, 2007, the trial court entered two orders. The first order (Order #1) directed Father to pay Mother $425 per month plus $50 in arrears, effective December 12, 2006. The second order (Order #2) directed Father to pay Mother $310 plus $50 in arrears, effective January 1, 2007. Both parties sought de novo review of these orders. A hearing was held on April 5, 2007, after which the court, by order dated April 5, 2007 and entered April 20, 2007, attributed Father $0 for support. The order further directed, in relevant part, that:
The trial court found that Mother and Father owed the identical amount in support. The court noted that:
An order of $0 for support corresponds to each party owing the other the identical amount in support, as reflected in my finding that each party was one-half responsible for the children's extracurricular activity expenses and medical insurance. The only difference between the parties' situations was that father had at his disposal $1,164 per month in children's Social Security benefits to provide for the children's support.
See Trial Court Opinion filed 6/14/07 at 4.
EFFECTIVE JANUARY 1, 2007 EACH PARTY WILL SPLIT THE SOCIAL SECURITY CHECK OF $1,164.00. ADD $1,164.00 REPRESENTING DECEMBER'S SOCIAL SECURITY CHECK TO THE ARREARS. . . . FATHER WILL PAY ¼ OF [MOTHER'S] HEALTH INSURANCE POLICY WITHIN 30 DAYS. FATHER IS RESPONSIBLE TO PAY ½ OF THE FOLLOWING EXTRACURRICULAR ACTIVITIES FOR THE CHILDREN: GYMNASTICS, BASEBALL, SOFTBALL, BASKETBALL, PIANO, RELIGIOUS EDUCATION, FIELD TRIPS, AND SUMMER CAMP. FATHER IS RESPONSIBLE TO REIMBURSE [MOTHER] WITHIN 30 DAYS OF RECEIPT OF INVOICES OR BILLS. EACH PARENT TO CLAIM 1 CHILD FOR INCOME TAX EXEMPTION.
See Support Order dated 4/5/07.
¶ 5 Father filed the present appeal raising the following questions for review:
I. WHETHER THE TRIAL COURT HAD SUBJECT MATTER JURISDICTION TO AWARD TO MOTHER, EFFECTIVE JANUARY 1, 2007, HALF THE SOCIAL SECURITY CHECK THAT FATHER RECEIVES AS REPRESENTATIVE PAYEE FOR THE CHILDREN AND/OR TO ADD TO THE ARREARS AN AMOUNT EQUAL TO THE CHILDREN'S DECEMBER SOCIAL SECURITY CHECK.
II. IN THE ALTERNATIVE, WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING TO MOTHER, EFFECTIVE JANUARY 1, 2007, $582 MONTHLY, EQUAL TO HALF THE SOCIAL SECURITY CHECK THAT FATHER RECEIVES AS THE REPRESENTATIVE PAYEE FOR THE CHILDREN AND BY ADDING TO THE ARREARS $1,164, AN AMOUNT EQUAL TO THE CHILDREN'S DECEMBER SOCIAL SECURITY CHECK
III. WHETHER FATHER APPEALED ORDER #1
IV. WHETHER ORDER #1 TOOK INTO ACCOUNT FATHER'S 45% SHARED CUSTODY AT THE TIME
V. WHETHER THE TRIAL COURT NEEDS TO CLARIFY HOW FATHER'S TAXES WERE COMPUTED
Father's brief at 4 (discussion following questions omitted).
As a prefatory matter, we note that Father's Statement of Questions Involved does not conform to the requirements of Pennsylvania Rule of Appellate Procedure 2116. This rule states, in pertinent part, that such Statement "should not ordinarily exceed 15 lines, must never exceed one page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception. . . ." Pa.R.A.P. 2116(a) (emphasis added). Herein, Appellant's Statement clearly exceeds 15 lines and encompasses 2 pages. See Father's Brief at 4-5. In the discussion infra, we decline to address the issues contained on the second page of Father's statement.
¶ 6 In child support matters, our standard of review is well-settled:
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 interest.
Gibbons v. Kugle, 908 A.2d 916, 918 (Pa.Super. 2006) (citation omitted).
¶ 7 Moreover,
When modification of a child support order is sought, the moving party has the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original or modified order. The lower court must consider all pertinent circumstances and base its decision upon facts appearing in the record which indicate that the moving party did or did not meet the burden of proof as to changed conditions.
Samii v. Samii, 847 A.2d 691, 695 (Pa.Super. 2004), quoting Commonwealth ex rel. Sladek v. Sladek, 563 A.2d 172, 173 (Pa.Super. 1989).
¶ 8 Father's first two issues on appeal involve the above-referenced order dated April 5, 2007. The basis of Father's contentions in this regard is that the court erred in directing that Mother, a non-representative payee, receive the children's benefits.
¶ 9 Pursuant to the Social Security Act (Act), 42 U.S.C.S. § 401 et seq., derivative benefits are available to dependent children of an individual entitled to Social Security retirement or disability benefits. 42 U.S.C.S. § 402(d)(1). Benefits are made to a "representative payee," who must use them "for the use and benefit of the beneficiary." 20 C.F.R. §§ 416.640, 404.2010. Benefits are deemed "for the use and benefit of the beneficiary" if used for the beneficiary's "current maintenance," including costs associated with obtaining "food, shelter, clothing, medical care and personal comfort items." 20 C.F.R. § 404.2040(a). Generally, benefits are neither assignable nor subject to legal process. 42 U.S.C.S. § 407(a). However, the Act provides an exception to the general bar in the case of Social Security benefits paid to individuals obligated to provide alimony or child support. See 42 U.S.C.S. § 659(a).
Section 407(a) provides:
§ 407. Assignment; amendment of section (a) The right of any person to any future payment under this title [ 42 USCS §§ 401 et seq.] shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title [ 42 USCS §§ 401 et seq.] shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
42 U.S.C.S. § 407(a).
Section § 659(a) provides:
§ 659. Consent by the United States to income withholding, garnishment, and similar proceedings for enforcement of child support and alimony obligations (a) Consent to support enforcement. Notwithstanding any other provision of law (including section 207 of this Act [ 42 USCS § 407] . . . moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States . . . to any individual . . . shall be subject, in like manner and to the same extent as if the United States . . . were a private person, to withholding in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 466 [ 42 USCS § 666(a)(1), (b)] and regulations of the Secretary under such subsections, and to any other legal process brought, by a State agency administering a program under a State plan approved under this part [ 42 USCS §§ 651 et seq.] or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony.
42 U.S.C.S. § 659(a)
¶ 10 The Pennsylvania child support guidelines (guidelines) state that Social Security benefits received by a child as the result of a parent's retirement "shall be added to the combined monthly net incomes of the obligor and obligee to calculate the income available for support. . . ." See Pa.R.C.P. 1910.16-2(b)(2). The amount of support owed to the child is then reduced by the amount of the Social Security benefits "before apportioning the remaining support obligation between the parties." Id.
¶ 11 In the case sub judice, the trial court determined that Father and Mother, who were to share equally in the physical custody of the children, had virtually identical incomes for purposes of support. As a result, the court directed that neither Father nor Mother be required to pay child support to the other under the guidelines. The court noted, however, that Father "would receive a windfall as the payee of both children's . . . benefits." See Trial Court Opinion filed 6/14/07 at 4. Based thereon, the trial court directed that the Social Security benefits be split between the parties. Id.
¶ 12 Father contends that the trial court did not have subject matter jurisdiction to direct him to split the benefits with Mother. He further argues that, if Mother wanted to continue receiving the benefits on behalf of the children, she should have exhausted her administrative remedies with the SSA by contesting her removal as representative payee.
¶ 13 Turning to Father's contention regarding subject matter jurisdiction, this Court has defined subject matter jurisdiction as "the power of the court to hear cases of the class to which the case before the court belongs, that is, to enter into inquiry, whether or not the court may ultimately grant the relief requested." Lowenschuss v. Lowenschuss, 579 A.2d 377, 380 (Pa.Super. 1990). It is well-established that the courts of common pleas generally have "unlimited original jurisdiction of all actions and proceedings[,]" 42 Pa.C.S.A. § 931(a), including support actions. 23 Pa.C.S.A. § 4341(c) (stating that the court "shall exercise [s]tatewide jurisdiction over the parties to a support proceeding"). Furthermore, as discussed above, the Act allows benefits to be transferred, assigned, or subjected to legal process in order to enforce a support obligation. See 42 U.S.C.S. § 659(a). Therefore, we disagree with Father's position regarding subject matter jurisdiction, and hold that the trial court had subject matter jurisdiction over the present support action. See Rose v. Rose, 481 U.S. 619 (1987) (holding that the inability to subject certain federal benefits to garnishment does not prohibit a state court from utilizing them in child support proceedings).
¶ 14 In the alternative, Father contends that the trial court erred in directing that he split the benefits with Mother and that he be held in arrears for an amount equal to the total benefit amount received in December of 2006. Father relies on the reasoning espoused by the North Carolina Court of Appeals in Brevard v. Brevard, 328 S.E.2d 789 (N.C.App. 1985), wherein the court held that the lower court did not have the power to order the SSA and the defendant to transfer benefits to the plaintiff. For the reasons that follow, we agree with Father that the trial court committed an error of law in this regard.
Our research reveals that Father's claim presents an issue of first impression in Pennsylvania, and, as a result, we will review the law of another jurisdiction for guidance.
¶ 15 In Brevard, the defendant, the non-custodial parent, was the representative payee receiving Social Security disability payments for the benefit of his children. The Brevard court held that, although courts may make benefits subject to a support order, the exception set forth in 42 U.S.C.S. § 659(a) did not apply; thus, the lower court had no power to order the defendant to pay to the plaintiff "any part of the Social Security benefits he had received, or might receive in the future, as payee for the children." Id. at 792. The court noted that the plaintiff may have an administrative remedy through petitioning the SSA to remove defendant as representative payee or to conduct an inquiry into his use of the children's benefits. ¶ 16 Mother attempts to distinguish Brevard from the present matter on the basis that Brevard involved the lower court directing the SSA to transfer the benefits to someone other than the designated payee. Mother argues that in this case, the trial court's order did not implicate the SSA at all. See Mother's Brief at 11. We find Mother's argument unavailing in that the Brevard court noted that the lower court did not have the power to order the SSA and the defendant to transfer benefits to the plaintiff. See Brevard, 328 S.E. 2d at 791.
The order that was the subject of the appeal in Brevard was not a child support order, but rather, an order granting a motion for an accounting of the Social Security disability benefits the defendant had received on behalf of the children. The lower court directed, in part, that "any and all sums received for the use and benefit of the children as a result of the defendant's disability be transferred to the plaintiff as support for the minor children." Id. at 791.
¶ 17 Herein, the trial court states in its Rule 1925(a) opinion that Mother was entitled to support in the amount of $582 per month, which we note represents one-half of the total benefits received by Father as representative payee of the children. The court states that, in the alternative, "assuming father's child support obligation is $0, then a deviation is certainly warranted in that amount for the direct support he is receiving from the federal government for the children's maintenance." Trial Court Opinion filed 6/14/07 at 9-10, citing Pa.R.C.P. 1910.16-5.
The trial court states that the guidelines provide a support formula which assumes that the obligee is receiving the Social Security benefits since the formula offers the obligor a credit against his or her share of the total child support obligation. See Trial Court Opinion at 8, citing Pa.R.C.P. 1910.16-4(a). We disagree that the guidelines make this assumption. Rather, the guidelines add the benefits to the combined monthly net incomes of the obligor and obligee to calculate the income available for support. . ." and the amount of support owed to the child is then reduced by the amount of the Social Security benefits " before apportioning the remaining support obligation between the parties." See Pa.R.C.P. 1910.16-2(b)(2) (emphasis added).
¶ 18 There is no allegation on appeal that that the trial court erred in concluding that Father's child support obligation is $0. Indeed, the record reveals no error by the trial court in this regard. Believing that Father would receive a "windfall" as representative payee, the trial court, after considering the guidelines and concluding that Father's child support obligation was $0, directed that Father split the benefits with Mother and be held in arrears for an amount equal to the total benefit amount received in December of 2006. We reiterate that portion of Pa.R.C.P. 191016-2(b)(2) set forth above; namely, that the guidelines state that benefits received by a child as the result of a parent's retirement "shall be added to the combined monthly net incomes of the obligor and obligee to calculate the income available for support. . . ." See Pa.R.C.P. 1910.16-2(b)(2). The amount of support owed to the child is then reduced by the amount of the Social Security benefits "before apportioning the remaining support obligation between the parties." Id. (emphasis added). Based upon our review of pertinent statutes and case law, we find that the trial court erred in considering the guidelines and other factors, determining Father's support obligation to be $0, and then directing Father to split the social security check of $1,164.00.
In so holding, we are mindful of this Court's pronouncement in Landis v. Landis, 691 A.2d 939 (Pa.Super. 1997) that, in the trial court's discretion, it may consider supplemental security income "as a basis for deviating from the guidelines when necessary to avoid an unjust or inappropriate result." Id. at 941. As clearly set forth above, in the case sub judice, the trial court did not use the benefits in question as a basis for deviating from the guidelines, but instead, arrived at a figure of $0 child support to be paid by the parties and, then, directed that the benefits be split between the parties. We add that this Court's decision herein does not prohibit a trial court from considering benefits as a basis from deviating from the guidelines in fashioning a child support award; but rather, it precludes the court, after assessing the guidelines and any bases for deviations therefrom and rendering a support determination, from then directing that benefits be apportioned between the parties.
¶ 19 Based on the foregoing, the order entered April 20, 2007, is vacated insofar as it orders Father to split the monthly Social Security benefit of $1,164.00 with Mother and holds Father in arrears in the amount of $1,164.00.
Father's remaining claims were not raised in his statement of matters complained of on appeal; therefore, they are waived for purposes of appellate review. Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998).
¶ 20 Order Vacated, In Part; Case Remanded; Jurisdiction Relinquished.
¶ 21 BENDER, J. FILES A DISSENTING OPINION.
¶ 1 Although I agree with the Majority that the trial court has subject matter jurisdiction over this support matter, I must respectfully disagree with the Majority's reliance on Brevard v. Brevard, 328 S.E.2d 789 (N.C.App. 1985), and its interpretation of this Court's decision in Landis v. Landis, 691 A.2d 939 (Pa.Super. 1997).
¶ 2 In the case before us, it appears that the trial court followed the Pennsylvania Rules of Appellate Procedure that dictate the manner in which the guidelines are applied to the specific incomes of the parties, which here resulted in a determination that $0 was due by either party to the other in support of their two children. However, the trial court then determined that a deviation was warranted, explaining that "father would receive a windfall as the payee of both children's Social Security benefits which are in the nature of direct child support . . . [and] are to be used for the children's `current maintenance,' including costs of `food, shelter, clothing, medical care, and personal comfort items.'" Trial Court Opinion, 6/14/07, at 9. ¶ 3 As in the instant case, the Landis decision deals with Supplemental Security Income (SSI) that is paid to the representative payee on behalf of a child or children. In Landis, the payee was the mother, who had primary custody of the two minor children and received child support from the father. The father's petition to modify the support award was based on his assertion that the receipt of the SSI payment "should be considered as additional income for the appellant [mother] in considering whether to deviate from the support guidelines." Landis, 691 A.2d at 940. Finding that the SSI payments were used in part for household expenses, the trial court reduced the award of support. The trial court recognized that SSI payments are not to be considered when awarding support under the guidelines, but that the SSI payments could constitute other income in deviating from the guidelines.
¶ 4 Agreeing with the trial court, this Court held that it was within the trial court's discretion to consider that the SSI payments may be "a basis for deviating from the guidelines when it is necessary to avoid an unjust or inappropriate result." Id. at 941. Our Court also indicated that the guidelines provide a presumption that can be rebutted "where other income enters the household which has the effect of creating an unjust result." Id. at 942. Accordingly, we affirmed the trial court's reduction of the amount of support paid to the mother by the father. See also Preston v. Preston, 646 A.2d 1186 (Pa.Super. 1994) (concluding that "there is a rebuttable presumption that credit will be given for Social Security payment made directly to the child), and Children and Youth Servs. v. Chorgo, 491 A.2d 1374 (Pa.Super. 1985) (same).
¶ 5 Here, Father, who shares custody of the two children equally, is the representative payee of the SSI benefits and under the guidelines owes no support. Pursuant to the discussion in Landis, the SSI payment he receives may be considered other income that would allow for the trial court to order a deviation from the guidelines. See Rule 1910.16-5(b)(3) ("In deciding whether to deviate from the amount of support determined by the guidelines, the trier of fact shall consider: . . . (3) other income in the household;. . . ."). I believe that the Majority's discussion in footnote 10 regarding the Landis decision attempts to make a distinction without a difference. Rather, the Landis court specifically stated that " once the court has properly consulted the guidelines to arrive at an award[,] the court has the discretion to deviate from that figure provided adequate reasons for the deviation are provided." Landis, 691 A.2d at 943 (emphasis added). The trial court in the instant case did just that and arrived at a fair and proper result; it did not abuse its discretion by concluding that under the facts of the case the SSI payments should be split equally. Therefore, I must dissent.