Opinion
462 WDA 2021 J-A29002-21
02-08-2022
M.M.F. v. M.F. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 16, 2021 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD-17-009381
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J. [*]
MEMORANDUM
BENDER, P.J.E.
M.F. (Father) appeals from the March 16, 2021 order that dismissed the exceptions filed by Father to the hearing officer's recommendations relating to child support paid to M.M.F. (Mother) for the support of the parties' eleven year old child, A.F. (Child). After review, we affirm.
The trial court's order states that "Father's exceptions and Mother's [c]ross [e]xceptions are dismissed, and the [h]earing [o]fficer's November 6, 2020, [r]ecommendation shall become a final order." Trial Court Order, 3/16/2021.
The trial court provided the following factual and procedural history of this matter, stating:
The parties were married on July 1, 2006[, ] and separated on July 31, 2017. They were divorced on September 12, 2019. The parties entered a Consent Order settling economic claims on September 10, 2019. This settlement agreement included a PACSES Order including child support, payments for [] [C]hild's dance lessons, and alimony, for a total of $4,342 [per month].
The PACSES Order was entered in October 2019. On February 14, 2020, Father filed a petition to modify his child support payment. A hearing on the modification was held on October 8, 2020, and the [h]earing [o]fficer issued his recommendations on November 6, 2020.
In his recommendations, the [h]earing [o]fficer found that Mother has a monthly net income of $5,220, and Father has a monthly net income of $14,081. He recommended that Father pay $3,215.88 per month in child support plus $325 in arrears, retroactive to February 14, 2020. Father also pays Mother $1[, ]000 per month in alimony, which end[ed] in September 2021. Father's total monthly payment is $4,215.88 plus 73% of [] [C]hild's unreimbursed medical expenses and other agreed upon expenses.
In his explanation, the [h]earing [o]fficer noted that Mother, although on sabbatical from her job as a teacher, was assigned her usual income of $5,220 per month pursuant to Pa.R.C.P. 1910.16-2(d)(1). He also found that she credibly testified that day[ ]care … for [] [C]hild, who is completing her schooling remotely due to the pandemic, would cost $2,800 per month, and included that in his calculation.
Trial Court Opinion (TCO), 6/7/2021, at 1-2 (citations to the record omitted).Both parties then filed exceptions. On March 16, 2021, this court dismissed the exceptions and made the [h]earing [o]fficer's recommendations a final order.
Father filed this appeal and raises the following issues for our review:
1. Was it error for the [t]rial [c]ourt to direct that Father pay for day care costs when Rule 1910.16-6(a) only allows the [c]ourt to make the payor pay for expenses actually paid?
2. Even if the [t]rial [c]ourt were correct in assessing the payment of the fictional day[ ]care expense, the retroactivity of the matter was to 2/14/2020 and, therefore, was it error to assess the day[ ]care payment for the 6.5 months between the modification retroactive date and the date Mother went on [s]abbatical?
Father's brief at 4 (emphasis in original).
Initially, we note that when reviewing a child support order, we are guided by the following well-settled standard:
McClain v. McClain, 872 A.2d 856, 860 (Pa. Super. 2005) (quoting Samii v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004))."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." Calabrese v. Calabrese, ... 682 A.2d 393, 395 ([Pa. Super.]1996). 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. Id. 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. Depp v. Holland, ... 636 A.2d 204, 205-06 ([Pa. Super.]1994). See also Funk v. Funk, ... 545 A.2d 326, 329 ([Pa. Super.] 1988). 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. Depp, 636 A.2d at 206.
Moreover, we recognize that
child support is a shared responsibility requiring both parents to contribute to the support of their children in accordance with their relative incomes and ability to pay. Depp ... 636 A.2d at 208 ... (citing DeWalt v. DeWalt, 365 Pa. Super. 280, 529 A.2d 508 (1987)). "Where a party voluntarily assumes a lower paying job, there generally will be no effect on the support obligation." Pa.R.C.P. 1910.16-2(d)(1). ... Where a party willfully fails to obtain appropriate employment, his or her income will be considered to be equal to his or her earning capacity. Pa.R.C.P. 1910.16-2(d)(4). A determination of earning capacity must consider the party's age, education, training, health, work experience, earnings history, and child care responsibilities. Id.
Portugal v. Portugal, 798 A.2d 246, 249-50 (Pa. Super. 2002)Kersey [v. Jefferson, 791 A.2d 419, 423 (Pa. Super. 2002)]. Accord DeMasi v. DeMasi, … 530 A.2d 871, 877 (Pa. Super. 1987) (holding that "[a] parent's ability to pay support is determined primarily by financial resources and earning capacity…. The obligation of support, then, is measured more by earning capacity than by actual earnings.")
In his first issue, Father questions "whether it was proper for Father to be ordered to reimburse Mother for fictional child care expenses[.]" Father's brief at 7. Specifically, Father contends that the trial court incorrectly "charged the Father for child[ ]care expenses which [] Mother did not and will not, in fact, incur." Id. To support this argument, Father relies on language contained in Pa.R.C.P. 1910.16-6(a), which states, in pertinent part:
Father emphasizes the "paid by the parties" language, indicating that only child[ ]care expenses that were actually incurred can be included in the calculation of the child support due. Thus, Father contends that the case should be remanded with directions to the trial court to credit Father $1,639.22 per month for the time period between February 14, 2020, through August 16, 2021, when Mother was not incurring child care costs due to her sabbatical leave.(a) Child care expenses. Reasonable child care expenses paid by the parties, if necessary to maintain employment or appropriate education in pursuit of income, shall be allocated between the parties in proportion to their monthly net incomes.
In response to this argument by Father, the trial court stated:
B. Child[ ]care Costs.
Father next alleges that it was unreasonable for the [h]earing [o]fficer to find Mother's testimony regarding child[ ]care costs credible. Under Samii, the [h]earing [o]fficer, as the fact-finder, "is entitled to weigh the evidence presented" and assess the credibility of witnesses and evidence. Samii, supra. Here, Mother testified that the cost of hiring someone to take care of ... [C]hild for 8.5 hours 5 days per week while ... [C]hild completes her remote schooling and [M]other would be at work, would be $2,800. Per Samii, it was within the [h]earing [officer's discretion to weigh Mother's testimony and to find Mother's testimony credible as to the cost to provide child[ ]care.
C. Child [ ] care Costs Under Pa.R.C.P. 1910.16-6(a).
Father next takes issue with the fact that the child[ ]care expenses are not actually incurred by Mother because she is home with ... [C]hild after taking a sabbatical from her work. However, the [h]earing [o]fficer did not take Mother's sabbatical into account and instead assigned her a full-time earning capacity. When determining earning capacity, the court is required to consider several factors. Morgan v. Morgan, 99 A.3d 554, 558 (Pa. Super. 2014). Under Pa.R.C.P. 1910-16.2(d)(4), these factors that must be considered are the "[a]ge, education, training, health, work experience, earnings history and child care responsibilities." Pa.R.C.P. 1910.16-6(a) states that "the trier-of-fact shall allocate reasonable child care expenses paid by the parties, if necessary to maintain employment." Here, the [h]earing [o]fficer assigned Mother her full-time earning capacity, treating her as if she was working full time. In determining Mother's earning capacity, the [h]earing [o]fficer considered Mother's actual work experience and earnings history along with child care responsibilities necessary for her to maintain employment. The [h]earing [o]fficer accepted as credible ... Mother's testimony as to the cost of the child care and the reason why the child care would be required. As finder of fact, the [h]earing [o]fficer was entitled to weigh Mother's evidence and accept its credibility. Samii, supra. Pursuant to Pa.R.C.P. 1910.16-6(a), the hearing officer allocated the reasonable child care expenses that would have been necessary for Mother to maintain employment[, ] as the sabbatical was voluntary and the hearing officer applied a full time earing capacity to Mother. Pa.R.C.P. 1910.16-6(d)(1). Here, it would not be equitable to
TCO at 5-6 (citation to the record omitted) (emphasis added).treat Mother as if she has a full time ear[n]ing capacity for one part of the calculation but then deny her the child care costs that would be necessary for her to incur to maintain full time employment for the other part of the calculation. The [h]earing [o]fficer did not abuse his discretion in allocating the child care costs that would be necessary for Mother to incur to maintain full time employment.
We agree with the trial court's determination in this matter. Father's argument rests on an imposition of an earning capacity on Mother, while at the same time refusing to consider child care costs because Mother did not continue to work outside the home as a seventh grade English teacher. As recognized by the trial court, in determining earning capacity, the court is to consider "age, education, training, health, work experience, earnings history and child care responsibilities[.]" See id. at 5 (quoting Pa.R.C.P. 1910.16-2(d)(4)). Furthermore, Mother notes in her brief that the parties had agreed "that [] Child would attend school remotely to avoid exposure to the COVID-19 virus." Mother's brief at 14 (citing N.T., 10/8/2020, at 71-72). Additionally, the language in Pa.R.C.P. 1910.16-6(a) contains the word "shall," not "may," thus, making it mandatory to allocate the costs of child care between the parents in proportion to each parent's income. Thus, we conclude that based on Father's argument, he is due no relief.
Father's second argument centers on the retroactivity of the payment of the child care expenses. He contends that he filed the child support modification petition on February 14, 2020, but that Mother took the sabbatical for the 2020-2021 school year, which began on September 1, 2020. Thus, Father asserts that Mother did not incur any child care expenses between February 14, 2020, and September 1, 2020, and that "the $1,639.22 charge was not warranted until Mother went on sabbatical. Father's brief at 10. In other words, Father contends that "[w]hile [Mother] was being paid and was not … incurring the $2,800 child care expenses, she had no reason to be paid $1,639.22. Father concludes that even if this Court affirms the trial court's decision relating to his first argument, we should remand the matter and instruct the trial court to give credit to Father for $1,639.22 times 6.5 months for a total of $10,654.93.
We disagree with Father's position and rely on the trial court's explanation given in response to this issue. Specifically, the trial court stated:
TCO at 7. No request was presented to the hearing officer, prior to or at the hearing, relating to the retroactivity of the new support order. Accordingly, the trial court properly followed the dictates of case law cited above, and we conclude that Father is not entitled to relief relating to his second issue. Accordingly, we affirm the March 16, 2021 order from which Father appealed.Lastly, Father disputes the retroactivity of the matter to February 14, 2020. "An order modifying a prior support order is ordinarily retroactive to the date of filing of a petition for modification." Albert v. Albert, 707 A.2d 234 (Pa. Super. 1998). Pa.R.C.P. 1910.17(a) states that "an order of support shall be effective from the date of the filing of the complaint or petition for modification." The Superior Court has stated that orders modifying previous orders of support are retroactive from the date of filing unless specified otherwise. Holcomb v. Holcomb, 620 A.2d 1155, 1158 (Pa. Super. 1996). Here, Father filed the petition to modify the order on February 14, 2020. Because the court never specified otherwise that the modification was not retroactive, the modified support order is retroactive to February 14, 2020, when Father filed to modify the original support order.
Order affirmed.
Judge Pellegrini joins this memorandum.
Judge Bowes files a dissenting memorandum.
DISSENTING MEMORANDUM
BOWES, J.
I respectfully dissent. I disagree with the distinguished majority's conclusion that Father must reimburse Mother for fictional child care expenses that she did not incur. For the reasons that follow, I would conclude that the trial court abused its discretion in denying Father's exceptions to this aspect of the hearing officer's recommendation, reverse the child support order adopting those recommendations, and remand for a recalculation of child support in light of striking the child care expenses.
The relevant statutory language provides that a trier-of-fact shall allocate childcare expenses paid by the parties as follows:
(a) Child care expenses.
(1) The trier-of-fact:
(i) shall allocate reasonable child care expenses paid by the parties, if necessary to maintain employment or appropriate education in pursuit of income.
Pa.R.C.P. 1910.16-6(a).(ii) may allocate reasonable child care expenses paid by the parties when the trier-of-fact imputes an earning capacity to a party as provided in Pa.R.C.P. No. 1910.16-2(d)(4)(i)(D).
According to the learned majority, this statutory language makes it mandatory for the trier-of-fact "to allocate the costs of child care between the parents in proportion to each parent's income." Majority Memorandum at 6. Instantly, the hearing officer accepted as credible Mother's testimony about the cost of child care for Child's remote schooling while Mother would be at work and ignored Mother's voluntary sabbatical leave from work, assigning Mother her full-time earning capacity. Based on these determinations, the majority agrees with the trial court that the hearing officer did not err in allocating child care expenses that would have been necessary for Mother to maintain full-time employment, despite her actually taking a voluntary sabbatical leave to avoid incurring those child care expenses. Id. at 5-6.
I am cognizant of the equitable dilemma regarding the imposition of a full-time earning capacity on Mother while depriving her of reimbursement for child care expenses that she would have incurred while working full-time during the COVID-19 pandemic. However, as discussed infra, the law only permits an obligation for child care when commensurate with current expenses, and Mother did not incur those expenses because she took an unpaid leave. Mother has not filed a cross-appeal challenging the imposition of an earning capacity, and therefore this Court may not address it sua sponte. Nonetheless, because I would reverse the child support order regarding child care costs, which was dependent on Mother being assigned an earning capacity, I would also remand for recalculation of the child support order.
Regardless of the hearing officer's decision to assign Mother a full-time earning capacity while she was voluntarily on sabbatical leave and earning no income, I do not believe that the relevant statutory language or our case law support the allocation of fictional child care expenses. In Portugal v. Portugal, 798 A.2d 246, 256 (Pa.Super. 2002), this Court considered various claims concerning a support order. We began with our standard of review:
Id. at 249 (citation omitted).The amount of a support order is largely within the discretion of the trial court, whose judgment should not be disturbed on appeal absent a clear abuse of discretion. An abuse of discretion is not merely an error of judgment, but rather a misapplication of the law or an unreasonable exercise of judgment. A finding that the trial court abused its discretion must rest upon a showing by clear and convincing evidence, and the trial court will be upheld on any valid ground.
Among other issues, we considered the husband's claim that the trial court abused its discretion in not permitting him to make payments directly to the children's child care provider as he alleged his wife did not provide the court with an accurate statement of the cost. We observed that the trial court calculated future child care expenses for 2001 by annualizing the expenses incurred in the first five months of 2001. The husband argued that this calculation did not accurately reflect the future child care expenses that would be incurred in the latter part of 2001 because the eldest child would become a full-time student elsewhere in September 2001, and therefore the daycare expenses would only be for one child from September to December 2001, not two, which is what the court's calculation assumed. The wife countered that any reduction would not be dramatic as the parties would also lose their discount for enrolling multiple children in daycare. The trial court considered these arguments and concluded "that it would not reduce the parties' child care expenses because Husband submitted no proof of the occurrence or amount of any such reduction." Id. at 256 (quotation marks and citation omitted). We held that the trial court did not abuse its discretion in fashioning the initial calculation or in ordering the husband to send the payments to the wife. In doing so, we noted that the husband could "petition the trial court to modify his child support obligation if he determines that the current child care expenses are not commensurate with his current obligation." Id. at 256 n.3.
Applying our holding in Portugal to the instant case, I cannot agree with the conclusion of the learned majority. Mother has submitted no proof of the occurrence of any actual daycare expenses. Rather, she testified to what child care expenses would be if she were to continue working full time. However, as the record shows, Mother instead took a sabbatical leave to avoid incurring those child care expenses. Father's exceptions to the recommendations of the hearing officer did precisely what we advised the husband in Portugal to do, i.e., petition the court to modify a support obligation if the current expenses are not commensurate with the currently imposed obligation. Since the hearing officer imposed an obligation for child care upon Father that was not commensurate with any current expenses, I find the trial court abused its discretion in dismissing Father's exceptions in that regard.
Based on the foregoing, I would reverse the order of the trial court and, in light of striking the imposition of child care expenses that were not actually incurred, remand for the trial court to recalculate the child support order.Thus, I am compelled to register this dissent.
As I would reverse as to Father's first issue, I do not reach his second issue.
[*] Retired Senior Judge assigned to the Superior Court.