J-A18035-17
`
`NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
`
`
`
`
`K.J.Y.
`
`
`
`
`
`
`
`B.L.
`
`
`
`
`
`Appellant
`
`v.
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`
` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
`
`
`
`
`
`
` No. 1907 WDA 2016
`
`Appeal from the Order Entered November 18, 2016
`In the Court of Common Pleas of Erie County
`Civil Division at No(s): NS201401090
`
`
`
`
`
`
`BEFORE: BOWES, LAZARUS and OTT, JJ.
`
`MEMORANDUM BY OTT, J.:
`
`FILED OCTOBER 31, 2017
`
`
`
`K.J.Y. (“Mother”) appeals from the order entered November 18, 2016,
`
`in the Erie County Court of Common Pleas, directing B.L. (“Father”) to pay
`
`child support for the parties’ minor son, C.Y.L. (“Child”). On appeal, Mother
`
`argues the trial court erred by (1) excluding from Father’s net monthly
`
`income calculation significant capital gains he received in 2014, and (2)
`
`failing to provide reasons on the record why a substantially higher upward
`
`deviation from the child support guidelines was not appropriate. For the
`
`reasons below, we affirm.
`
`
`
`The facts underlying this appeal are as follows. Mother and Father
`
`were never married, but have one son, Child, who was born in November of
`
`2011. Since Child’s birth, Mother and Child have lived in a home paid for by
`
`Father. See N.T., 10/28/2016, at 131. On July 16, 2014, Mother filed a
`
`
`
`

`

`J-A18035-17
`
`complaint for child support. However, less than a month later, she withdrew
`
`the complaint. See Consent Order, 8/11/2014.
`
`
`
`Subsequently, on January 11, 2016, Mother filed a second petition for
`
`child support. Support conferences were conducted before a domestic
`
`relations conference officer on March 28, 2016, and May 6, 2016.
`
`Thereafter, on May 11, 2016, the conference officer entered a “Summary of
`
`Trier of Fact” and recommended Father pay Mother $14,173.79 per month in
`
`child support. See Summary of Trier of Fact, 5/11/2016, at 3.
`
`
`
`By way of background, Mother owns and operates a small business,
`
`while Father has “various degrees of ownership in a number of different
`
`broadcast media-related business entities.” Trial Court Opinion, 2/9/2017,
`
`at 4. Father sold his interest in two of those entities in 2014, which
`
`generated $6,600,000.00 in capital gains. The conference officer included in
`
`Father’s monthly net income $5,950,196.04 he received in capital gains in
`
`2014, and amortized that amount over two years. See Summary of Trier of
`
`Fact, 5/11/2016, at 2. Accordingly, the officer determined Father’s net
`
`monthly income was $252,076.28, and Mother’s net monthly income was
`
`$3,445.14. The final support recommendation included a $1,500.00
`
`downward deviation because, inter alia, Mother lives rent free in a home
`
`owned by Father.
`
`
`
`On May 24, 2016, Father filed a demand for a de novo hearing. The
`
`hearing was conducted on October 28, 2016. Thereafter, on November 18,
`
`2016, the trial court entered the child support order now on appeal.
`
`- 2 -
`
`

`

`J-A18035-17
`
`Relevant to this appeal, the court excluded the capital gains Father received
`
`in 2014 from his income calculation and determined the parties’ net monthly
`
`incomes were $48,696.00 for Father, and $5,063.00 for Mother. The court
`
`then fashioned the support award, directing Father to pay Mother as follows:
`
`(1) from January 11, 2016, through September 12, 2016, $4,221.43 per
`
`month (Father has 40% custody); (2) from September 13, 2016, through
`
`December 31, 2016, $3,698.55 per month (parties share 50% custody); and
`
`(3) from January 1, 2017, to present, $3,726.09 per month (private school
`
`tuition removed). The monthly payments represent a ten percent upward
`
`deviation from the support guidelines. This appeal followed.1, 2
`
`
`
`Mother’s first issue on appeal challenges the trial court’s failure to
`
`include in Father’s net monthly income calculation the nearly $6 million in
`
`capital gains he received in 2014. See Mother’s Brief at 11-19.
`
`Our review of a child support order is well-settled:
`
`“Appellate review of support matters is governed by an abuse of
`discretion standard.” V.E. v. W.M., 54 A.3d 368, 369 (Pa.
`Super. 2012). 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. Kimock v. Jones, 47
`
`____________________________________________
`
`1 On December 21, 2016, the trial court ordered Mother to file a concise
`statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
`Mother complied with the directive, and filed a concise statement on January
`4, 2017.
`
` 2
`
` Father initially filed a cross-appeal on December 28, 2016, but later filed a
`praecipe to discontinue the appeal, which was granted on March 9, 2017.
`See Appellate Docket No. 7 WDA 2017.
`
`- 3 -
`
`

`

`J-A18035-17
`
`A.3d 850, 853–54 (Pa. Super. 012). “An abuse of discretion is
`‘[n]ot merely an error of judgment, but if in reaching a
`conclusion the law is overridden or misapplied, or the judgment
`exercised is manifestly unreasonable, or the result of partiality,
`prejudice, bias or ill-will, as shown by the evidence of record.’”
`V.E., 54 A.3d at 369. “The principal goal in child support
`matters is to serve the best interests of the children through the
`provision of reasonable expenses.” Mencer v. Ruch, 928 A.2d
`294, 297 (Pa. Super. 007).
`
`R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa. Super. 2013), appeal denied, 84 A.3d
`
`1064 (Pa. 2014).
`
`
`
`Pennsylvania Rule of Civil Procedure 1910.16-2 provides that
`
`“[g]enerally, the amount of [child] support to be awarded is based upon the
`
`parties’ monthly net income.” Pa.R.C.P. 1910.16-2. The Rule further states
`
`“[m]onthly gross income is ordinarily based upon at least a six-month
`
`average of all of a parties’ income” as defined in 23 Pa.C.S. § 4302, and
`
`includes, inter alia:
`
`(2) net income from business or dealings in property; [and]
`
`…
`
`(8) other entitlements to money or lump sum awards, without
`regard to source, including lottery winnings, income tax refunds,
`insurance compensation or settlements; awards and verdicts;
`and any form of payment due to and collectible by an individual
`regardless of source.
`
`Pa.R.C.P. No. 1910.16-2(a)(2), (8). Similarly, Section 4302 defines
`
`“income” as:
`
`compensation for services, including, but not limited to, wages,
`salaries, bonuses, fees, compensation in kind, commissions and
`similar items; income derived from business; gains derived from
`dealings in property; interest; rents; royalties; dividends;
`annuities; income from life insurance and endowment contracts;
`
`- 4 -
`
`

`

`J-A18035-17
`
`all forms of retirement; pensions; income from discharge of
`indebtedness; distributive share of partnership gross income;
`income in respect of a decedent; income from an interest in an
`estate or
`trust; military
`retirement benefits;
`railroad
`employment retirement benefits; social security benefits;
`temporary and permanent disability benefits; workers'
`compensation; unemployment compensation; other entitlements
`to money or lump sum awards, without regard to source,
`including lottery winnings; income tax refunds; insurance
`compensation or settlements; awards or verdicts; and any form
`of payment due to and collectible by an individual regardless of
`source.
`
`23 Pa.C.S. § 4302.
`
`
`
`Based upon these broad definitions of income, Mother argues the trial
`
`court erred when it failed to include the capital gains Father received in 2014
`
`in his income calculation. See Mother’s Brief at 11-17. She acknowledges
`
`the current petition for support was not filed until 2016. However, Mother
`
`emphasizes she originally sought child support in 2014, and insists a “factual
`
`issue arises as to whether or not [Father] knew that he would be receiving
`
`the $6,000,000.00 (six-million dollars) when he induced [Mother] to sign the
`
`consent for the issuance of the court order which cancelled the [2014]
`
`support conference.” Mother’s Brief at 13. Moreover, she points out that,
`
`pursuant to Pa.R.C.P. 1910.16-2(a), a party’s monthly gross income is
`
`“ordinarily based upon at least a six-month average” of the party’s income,
`
`“leaving the door open for the Court to include earnings over a longer period
`
`of time.” Mother’s Brief at 14. Mother insists “[t]he present case is
`
`certainly the type of factual scenario which would require a review of
`
`earnings over a period of time longer than six months taking into
`
`- 5 -
`
`

`

`J-A18035-17
`
`consideration the failure of [Father] to notify [Mother] of the $6,000,000.00
`
`lump sum earnings.” Mother’s Brief at 14-15.
`
`The trial court addressed this argument in its opinion as follows:
`
`As one would expect, the details of the 2014 transaction
`
`were relatively complex. However, for support purposes, the
`inquiry is simple: Is capital gain received in 2014 properly
`included in Father’s net monthly income for purposes of a child
`support Complaint filed in 2016? Under the facts of this case,
`the answer is clearly no. There was no child support order in
`effect in 2014 or 2015. In fact, the docket reflects that
`Mother filed for child support in July of 2014, but then
`voluntarily withdrew her action in August of 2014, and did
`not file again until 2016. There was no argument or
`evidence presented that Father is responsible for Mother’s
`delay in filing for support. Nor was there evidence to suggest
`that the business transactions resulting in $6.6 million in 2014
`were likely to recur in subsequent years, so as to reflect current
`or future earning capacity, or that Father voluntarily or willfully
`reduced his income after 2014 to avoid a child support
`obligation.
`
`fair, non-confiscatory and
`Support orders “must be
`
`attendant to the circumstances of the parties.” Fennell v.
`Fennell, 753 A.2d 866, 868 (Pa. Super. 2000). “When a payor
`spouse owns his own business, the calculation of income for child
`support purposes must reflect the actual available financial
`resources of the payor spouse.” Fitzgerald v. Kempf, 805 A.2d
`529, 532 (Pa. Super. 2002) (internal quotation marks omitted).
`Further, “all benefits flowing from corporate ownership must be
`considered in determining income available to calculate a
`support obligation.” Fennell, supra at 86. “[T]herefore…the
`owner of a closely-held corporation cannot avoid a support
`obligation by sheltering income that should be available for
`support by manipulating
`salary, perquisites,
`corporate
`expenditures, and/or corporate distribution amounts.” Id.; see
`also Spahr v. Spahr, 869 A.2d 548, 552 (Pa. Super. 2005).
`
`There is no evidence that the 2014 sale transaction was
`
`other than an arms-length business deal involving multiple
`parties and investors. Nor is there evidence that Father
`manipulated the 2014 transaction and/or receipt of sale
`
`- 6 -
`
`

`

`J-A18035-17
`
`proceeds for the purpose of avoiding a child support
`obligation. Accordingly, the Court properly rejected the
`conference officer’s recommended order with regard to the 2014
`capital gain.
`
`Trial Court Opinion, 2/9/2017, at 4-5 (emphasis supplied).
`
`
`
`Our review of the record reveals no abuse of discretion on the part of
`
`the trial court. Although, in her brief, Mother blames Father for the
`
`withdrawal of her 2014 support complaint, the record simply does not
`
`support this allegation. Mother presented no testimony or evidence that
`
`Father induced her to withdraw the complaint, let alone that he did so with
`
`an improper motive, i.e., to shelter his 2014 capital gains from being
`
`considered as income for child support purposes.
`
`Moreover, Father’s expert forensic accountant, Richard Brabender,
`
`testified regarding the purchase and sale of the business, which resulted in
`
`the 2014 capital gains. See N.T., 10/28/2016, at 105-108. This testimony
`
`supports the trial court’s conclusion that the sale was an “arms-length
`
`business deal involving multiple parties and investors.” Trial Court Opinion,
`
`2/9/2017, at 5. Mother presented no evidence that Father manipulated the
`
`sale in any way so as to remove the income from a child support order.
`
`Further, Brabender noted the 2014 capital gains predated Mother’s support
`
`complaint by two years. See N.T., 10/28/2016, at 108. He stated he did
`
`include 2015 capital gains in his calculation because there was an additional
`
`amount distributed in 2016. See id. However, Brabender testified there
`
`would be no further distributions after 2016. See id. at 108-109, 122.
`
`- 7 -
`
`

`

`J-A18035-17
`
`Accordingly, we conclude the trial court’s findings are supported by the
`
`record.
`
`Mother also asserts, however, the trial court erred when it (a) did not
`
`impute a “reasonable income to [F]ather for what he could have earned on
`
`the money[,]” and (b) accepted the opinion of Father’s expert witness that
`
`the “retained earnings” listed on Father’s tax forms do not constitute income
`
`for support purposes. Id. at 17-18. Father insists that both of these claims
`
`are waived. See Father’s Brief at 19, 22. We agree. Mother did not include
`
`either of these two issues in her court-ordered concise statement. See
`
`Statement of Errors Complained of on Appeal, 1/4/2017. Therefore, the trial
`
`court did not address them in its opinion, and they are waived for our review
`
`on appeal. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
`
`Statement … are waived.”); Morgante v. Morgante, 119 A.3d 382, 396
`
`(Pa. Super. 2015).
`
`In her second issue, Mother argues the trial court failed to “specify, in
`
`writing or on the record, the guideline amount of support,” and its reasons
`
`for awarding only a ten percent upward deviation. Mother’s Brief at 19.
`
`First, she maintains the court failed to calculate the support payment
`
`pursuant to the “high income” formula set forth in Pa.R.C.P. 1910.16-3.1.
`
`See id. at 20. Next, she claims the court abused its discretion with respect
`
`to several of the deviation factors listed in Section 1910.16-5(b), and failed
`
`to make findings of fact on the record to support its negligible ten percent
`
`upward deviation. See id. at 20-21. Lastly, Mother emphasizes that Father,
`
`- 8 -
`
`

`

`J-A18035-17
`
`as “a rich parent,” must provide his child with “the advantages that his []
`
`financial status indicates to be reasonable.” Id. at 22. Accordingly, Mother
`
`insists the child support award was insufficient in light of Father’s
`
`“extravagant lifestyle.” Id. at 23.
`
`Because the parties’ net monthly income is more than $30,000.00, the
`
`support award is calculated pursuant to a three-step process outlined in Rule
`
`1910.16-3.1.
`
`The three-step process involves: (1) implementation of the child
`support formula prescribed in the section; (2) applicable
`adjustments for shared custody and allocations of additional
`expenses; and (3) consideration of additional
`factors to
`determine whether a downward or upward deviation
`is
`appropriate.
`
`Hanrahan v. Bakker, 151 A.3d 195, 203 (Pa. Super. 2016), appeal
`
`granted, ___ A.3d ___ [19 MAP 2017] (Pa. May 3, 2017). See also
`
`Pa.R.C.P. 1910.16-3.1(a)(1)-(3) (high income cases). The pertinent
`
`deviation factors are set forth in Rule 1910.16-5(b), which provides:
`
`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;
`
`- 9 -
`
`

`

`J-A18035-17
`
`(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.
`
`Pa.R.C.P. 1910.16-5(b).
`
`Rule 1910.16-3.1(a)(3) requires the trial court “make findings of fact
`
`on the record or in writing” after considering the deviation factors, and
`
`before adjusting the monthly payment amount upward or downward.
`
`Pa.R.C.P. 1910.16-3.1(a)(3).3 However, this Court has emphasized “there is
`
`no required amount of detail for the trial court’s explanation[;]” rather, “[a]ll
`
`that is needed is that the enumerated factors are considered and that the
`
`deviation is based on those considerations.” E.R.L. v. C.K.L., 126 A.3d
`
`1004, 1009 (Pa. Super. 2015). Furthermore, we “may only reverse the trial
`
`court’s determination where the order cannot be sustained on any valid
`
`ground.” Id. at 1007 (quotation omitted).
`
`First, we note that contrary to Mother’s allegation, the trial court
`
`properly calculated Father’s support payment for each relevant time period
`
`based upon the Rule 1910.16-3.1 formula. See Trial Court Opinion,
`
`2/9/2017, at 10-14 (including calculation charts). Mother fails to explain
`
`____________________________________________
`
`3 Rule 1910.16-5 provides a similar requirement: “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(a).
`
`- 10 -
`
`

`

`J-A18035-17
`
`how or why the court’s calculations were incorrect. See Mother’s Brief at
`
`20.
`
`Second, although the trial court acknowledged it failed to provide “a
`
`detailed written analysis of the Rule 1910.16-5(b) factors,” it, nevertheless,
`
`concluded Mother was “not an aggrieved party.” Trial Court Opinion,
`
`2/9/2017, at 8. The court explained:
`
`Mother’s argument that the deviation should have been greater
`is without merit, as deviation from the presumptive guideline
`amount is entirely discretionary, as is the amount of the
`deviation. Indeed, the Court was free to grant no deviation at
`all. But more importantly, the facts of this case did not warrant
`a detailed factors analysis. There was no testimony or other
`evidence offered by either party of unusual needs and unusual
`fixed obligations (1910.16-5(b)(1)); other support obligations of
`the parties ((b)(2)); other income in the household ((b)(3));
`considerations relative to the age of the child ((b)(4)); or
`extraordinary medical expenses not covered by insurance
`((b)(6)).
`
`Instead the evidence related only to disparity in the
`
`relative assets of the parties ((b)(5)), potentially resulting in a
`disparate standard of living of the parties and their child
`((b)(7)), which, in turn, could negatively impact the best
`interests of the child ((b)(9)). Though Mother had difficulty
`identifying additional things or opportunities she could not
`provide the child that Father could,7 the Court determined that a
`modest upward deviation was appropriate in light of the three
`factors implicated by the facts presented at trial, which were
`obvious to all in attendance, as the record reflects.8 Accordingly,
`under the circumstances of this case, the Court’s order was
`sufficient under Rule 1910.16-5.
`
`__________
`
`7 On direct examination, prior to a series of leading
`questions, Mother was asked by her counsel: “Are there
`things [Father] does with [the child] that you were not
`able to do that you would like to do? Give us some
`examples.” To which Mother responded: “I would like to
`
`- 11 -
`
`

`

`J-A18035-17
`
`be able to – I just – I –I just – I don’t know. I just –
`There’s so much I would like to do that he does with him
`that I can’t do. … I can’t think of them right now.”
`
`8 The Court also considered Mother’s Income and Expense
`Statement, admitted as Mother’s Exhibit 5, claiming
`monthly expenses totaling $10,030.00. The expenses
`include the mortgage amount of $1,500.00 paid by Father,
`and “Other” custody-related litigation expenses of $800.00
`that should not recur monthly given the parties resolved
`their custody dispute in September of 2016. Backing out
`those expenses, the new total is $7,730.00, which is
`sufficiently less than Mother’s income combined with child
`support under the November 18, 2016 Order, even
`allowing for her relatively generous standard of living-type
`expenses, such as
`travel, entertainment, clothing,
`household help, legal fees and credit card payments.
`
`Id. at 8-9.
`
`
`
`We again find no abuse of discretion on the part of the trial court.
`
`Although the court, admittedly, failed to make findings of fact on the record
`
`regarding the deviation factors before entering the present child support
`
`award, Mother has not established she was prejudiced by the court’s
`
`omission. Indeed, as noted above, the trial court explained its findings with
`
`regard to the Rule 1910.16-5 deviation factors in its February 9, 2017,
`
`opinion. See id.
`
`
`
`Moreover, Mother’s primary concern appears to be that by virtue of
`
`Father’s greater wealth, he is able to live in a “higher value” home, and lead
`
`“an extravagant lifestyle where, among other activities, he takes the child on
`
`vacations to Europe and also flies by private plane.” Mother’s Brief at 23.
`
`She insists that “[t]he reasonable needs of a child whose parents are
`
`- 12 -
`
`

`

`J-A18035-17
`
`wealthy may include items that would be considered frivolous to parents
`
`who are less well off.” Id. at 22.
`
`
`
`We remind Mother that the standard we apply in reviewing a trial court
`
`award is abuse of discretion. See R.K.J., surpa, 77 A.3d at 37. Here,
`
`Mother has provided us with no basis to conclude the court’s ten percent
`
`upward deviation from the support guidelines constituted an abuse of
`
`discretion, save for her general assertion that Father makes more money
`
`than she does. Nonetheless, as the trial court noted in a footnote, Mother’s
`
`income and expense statement included “relatively generous standard of
`
`living-type expenses, such as travel, entertainment, clothing, household
`
`help, legal fees and credit card payments.” Trial Court Opinion, 2/9/2017, at
`
`9 n.8. Mother does not identify any specific activities that child cannot
`
`participate in during Mother’s custodial periods which is a result of her lower
`
`income. See Mother’s Brief at 21-23. Accordingly, she is entitled to no
`
`relief.
`
`
`
`Order affirmed.
`
`Judgment Entered.
`
`
`
`
`
`Joseph D. Seletyn, Esq.
`Prothonotary
`
`
`
`Date: 10/31/2017
`
`- 13 -
`
`

`

`J-A18035-17
`J-A18035-17
`
`
`
`
`
`
`
`-14-
`- 14 -
`
`