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Silver v. Pinskey

September 15, 2009

ROBERTA L. SILVER, APPELLEE
v.
RALPH B. PINSKEY, APPELLANT



Appeal from the Order entered April 20, 2007 In the Court of Common Pleas of Dauphin County Domestic Relations, No. 2587 DR 99 PACSES #700101608.

The opinion of the court was delivered by: Gantman, J.

BEFORE: FORD ELLIOTT, P.J., STEVENS, MUSMANNO, ORIE MELVIN, LALLY-GREEN*fn1, KLEIN, GANTMAN, PANELLA, AND DONOHUE, JJ.

OPINION

¶ 1 Appellant, Ralph B. Pinskey ("Father"), appeals pro se from the support order entered in the Dauphin County Court of Common Pleas, asking us to determine whether the trial court had subject matter jurisdiction to award Appellee, Roberta L. Silver ("Mother"), one half of the Social Security benefits Father receives as representative payee for the children. Father also challenges other sections of the order as unenforceable as written. We hold the court's jurisdiction in this case is sound, the Social Security derivative benefits at issue can be subject to legal process under 42 U.S.C.A. § 659 to enforce a child support obligation. Nevertheless, we vacate that part of the order setting Father's basic support obligation at $0.00 and directing him to split with Mother the monthly Social Security derivative payments of $1,164.00. We remand the matter to the trial court to correct the record to comport with the court's intent to ensure the children will benefit from the Social Security derivative payments regardless of whether they are staying with Father or Mother. We affirm the support order in all other respects.

¶ 2 The trial court opinion sets forth the relevant facts of this case as follows:

The parties, [Father and Mother], were married in 1991 and separated in 1998. They are the parents of two children currently [sixteen] and [thirteen] years old.*fn2

Following separation, [M]other maintained primary physical custody through December 31, 2006. As of January 1, 2007, the parties have equally shared physical custody. Both parties are attorneys. Father works full time in a solo practice and [M]other works part time for the Commonwealth, Department of State. Because [F]ather is of retirement age (currently [sixty-nine] years old),*fn3 both he and his children have been receiving Social Security benefits. Through the end of 2006, [M]other was the representative payee of the children's dependent benefits. Beginning in 2007, [F]ather became the representative payee.

Mother obtained a child support order against [F]ather in 1999 that was modified numerous times over the ensuing years. The May 18, 2006 order, effective June 14, 2006, required [F]ather to pay $392 per month plus $50 per month on arrears. At the time, [M]other was receiving $1,128 per month in Social Security benefits for the children as their representative payee, derivative of [F]ather's [retirement] age. Pursuant to the Support Guidelines, the Social Security income was considered in the support calculations resulting in a credit to [F]ather against his support obligation. . On December 5, 2006, [F]ather filed a petition to terminate [the May 18, 2006 support order] on the basis that the parties had agreed to share physical custody equally. [Additionally, pursuant to Father's request, the Social Security Administration ("SSA") designated Father as representative payee of the children's derivative benefits beginning in January 2007. The SSA erroneously sent the December 2006 payment to Father.] On December 12, 2006, [M]other filed a petition to increase child support due to [F]ather's alleged increased income or earning capacity and her increased expenses for the children.

Following a Domestic Relations Section office conference, [the court entered] two orders of support recommended by the hearing officer. The first, effective December 12, 2006, directed that [F]ather pay child support of $425 per month plus $50 per month on arrears. The second order, effective January 1, 2007, directed [F]ather to pay $310 per month plus $50 on arrears. In recommending these orders, the conference officer assigned [M]other a net monthly income of $3,512.50 derived from an assigned $59,000 full-time yearly earning capacity. Father was assigned a net monthly income of $4,275.66 derived from an assigned annual earning capacity of $42,640, plus his $1,300 per month in Social Security retirement benefits and $250 monthly rental property income. In recommending the support orders, the conference officer followed the formula set forth in the Support Guidelines for treatment of the children's derivative Social Security benefits of $1,164 per month, even though for the second order, [F]ather was the payee of the children's Social Security benefits. . Both parties sought de novo review and a hearing was held.on April 5, 2007.

At the hearing, the principal issue raised by [F]ather was that [M]other should be attributed a higher earning capacity for the purpose of calculating support, noting that under a March 21, 2002 order, [the court] had attributed [M]other a full time annual earning capacity of $59,000 and [F]ather an annual earning capacity of between $38,000 and $41,000. As of 2007, [Father] claimed her earning capacity had increased to $71,000.

The principal issue raised by [M]other was how to address the children's Social Security income since the Support Guideline formula clearly did not address a situation where the obligor is receiving the children's benefits. Mother suggested that the court deviate from the Guidelines in this situation. Mother also raised a number of other issues at the hearing. Though she agreed $71,000 was an accurate earning capacity for her, she argued that if the court assigned her that earning capacity it should also assign [F]ather the same or similar earning capacity. Mother also argued that in determining [F]ather's income, he should be imputed with rental income of $760 per month instead of the $250 per month attributed to him by the hearing officer. Finally, [M]other sought that all the additional expenses she pays out of pocket be included in the support award. Mother argued that although [F]ather is obligated to pay his share of these expenses outside of his monthly obligation, she has had difficulty getting [F]ather to reimburse her for his share of the children's added expenses and this would remedy her collection problem.

At the conclusion of the de novo hearing, [the court] stated on the record that effective January 1, 2007, the best solution, given the unique Social Security issue and the fact custody was equally shared, was to assess [F]ather $0 for support but require that he pay [M]other one-half of the $1,164 he receives from the Social Security Administration for their two [children], or $582 per month. [The court] also ordered [F]ather to pay, outside of the support order, one-half of the children's extracurricular activity expenses and one-half of their medical insurance that [M]other is obligated to obtain. [The court] also directed that the parties split the federal tax dependency exemptions. Finally, [the court] added the $1,164 that [F]ather [erroneously] received for the children's December Social Security benefits to his arrears since the support order for that time period was calculated under the Support Guidelines formula which assumes the obligee was receiving the benefits on the children's behalf. Accordingly, on April 5, 2007, [the court] issued an order reflecting its decision [and entered the order on April 20, 2007].

(Trial Court Opinion, filed June 14, 2007, at 1-3) (internal citations omitted).

The April 2007 order in full provided:

AND NOW, this 5th day of APRIL, 2007, it is ordered as follows:

[Father] is ordered to pay support effective January 1, 2007 as follows:

$0.00/Week for support of: 2 child(ren) $0.00/Week on arrears

[Mother] to provide medical insurance

[Father] to pay 50% of unreimbursed medical expenses that exceed $250.00 annually per child and/or spouse. Medical expenses include insurance co-payments and deductibles and all expenses incurred for reasonably necessary medical services and supplies, including but not limited to surgical, dental, orthodontic, optical, psychiatric, psychological or mental health counseling. Medical expenses do not include cosmetic or chiropractic services unless specifically directed in the order of court.

[Mother] is responsible to pay the first $250.00 annually (per child and/or spouse) in unreimbursed medical expenses.

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 THE CHILDREN'S SCHOOL LUNCHES WHEN HE HAS CUSTODY. MOTHER WILL PAY SCHOOL LUNCHES DURING HER CUSTODY. FATHER WILL PAY 1/4 OF [MOTHER'S] HEALTH INSURANCE POLICY WITHIN 30 DAYS. FATHER IS REPONSIBLE TO PAY 1/2 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 EXCEPTION.

(Trial Court Order, dated April 5, 2007 and entered April 20, 2007, at 1-2).

¶ 3 On April 27, 2007, Father timely filed a notice of appeal. On May 4, 2007, the court ordered Father to file a concise statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b), which he timely filed on that same day. Father later filed amended Rule 1925(b) statements on June 27, 2007 and July 27, 2007.*fn4

¶ 4 On April 4, 2008, a panel of this Court, with one judge dissenting, determined the trial court had erred in directing Father to split the monthly Social Security derivative benefits of $1,164.00, after setting Father's basic support obligation at $0.00. The panel vacated the support order in part and remanded for a new determination of Father's support obligation. Father subsequently requested reargument. By per curiam order of May 30, 2008, this Court granted reargument, withdrew its panel decision, directed the case to be listed before an en banc panel, and ordered the parties to file additional copies of the brief previously filed, together with a supplemental brief, or prepare and file a substitute brief. Both parties filed substitute briefs.

¶ 5 Father raises the following issues for our review:

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?

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?

WHETHER FATHER APPEALED ORDER #1?

WHETHER ORDER #1 TOOK INTO ACCOUNT FATHER'S 45% SHARED CUSTODY AT THE TIME?

WHETHER THE TRIAL COURT NEEDS TO CLARIFY HOW FATHER'S TAXES WERE COMPUTED?

WHETHER FATHER SHOULD BE GIVEN CREDIT FOR PRIOR SUPPORT PAYMENTS MADE TOWARD THE COST OF [N.P.'S] SUMMER CAMP?

WHETHER THERE IS ANY LEGAL AUTHORITY FOR FATHER TO HAVE TO PAY A PORTION OF THE HEALTH INSURANCE COSTS ALLEGEDLY PAID BY MOTHER'S SPOUSE TO COVER THE CHILDREN?

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY REQUIRING FATHER TO PAY HALF OF THE COST OF THE CHILDREN'S EXTRACURRICULAR ACTIVITIES?

(Father's Brief at 4-5).*fn5

¶ 6 The well-settled standard of review in a child support case provides:

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.

Mencer v. Ruch, 928 A.2d 294, 297 (Pa.Super. 2007) (quoting D.H. v. R. H., 900 A.2d 922, 927 (Pa.Super. 2006)).

¶ 7 In his first two issues combined, Father argues federal courts have exclusive subject matter jurisdiction to review Social Security Administration ("SSA") decisions. Father contends the trial court has no subject matter jurisdiction to alter the SSA's decision to make him the representative payee of his childrens' Social Security derivative benefits. Father avers the court's actions in effectively splitting the benefits constituted a "legal process" in violation of 42 U.S.C.A. § 407(a), which provides that no Social Security payments shall be subject to, inter alia, attachment, garnishment or other legal processes. Father acknowledges 42 U.S.C.A. § 659(a) serves as an exception to Section 407(a), and permits the attachment of Social Security benefits to satisfy a child support obligation. Nevertheless, Father insists the exception applies only to past due child support, not to the children's Social Security derivative benefits he receives as the representative payee. Father maintains if Mother wanted to continue receiving derivative benefits on behalf of the children, she should have pursued and exhausted her administrative remedies with the SSA.

¶ 8 Alternatively, Father claims the court's deviation from the child support guidelines does not comply with the procedure set forth in Pa.R.C.P. 1910.16-5(b), which requires the court to consider nine (9) factors before deciding to deviate from the support guidelines. Father concedes the childrens' derivative benefits could arguably be considered "other income in the household" pursuant to Rule 1910.16-5(b), and acknowledges the court considered the derivative benefits as "other income." Father argues, however, the court did not consider any other factors under Rule 1910.16- 5(b), including the income of Mother's husband and the income Mother could earn if she worked full time. Father also contends the court calculated his rental income incorrectly, causing the court to assign equal incomes to each of the parties. Father concludes this Court must vacate and remand for a new determination of Father's support obligation. We disagree in part and agree in part with Father's contentions.

¶ 9 Preliminarily, we observe: "Subject matter jurisdiction relates to the competency of a court to hear and decide the type of controversy presented. Jurisdiction is a matter of substantive law. 42 Pa.C.S. § 931(a) (defining the unlimited original jurisdiction of the courts of common pleas)." Commonwealth v. Bethea, 574 Pa. 100, 113, 828 A.2d 1066, 1074 (2003), cert. denied, 540 U.S. 1118, 124 S.Ct. 1065, 157 L.Ed.2d 911 (2004). "The trial court has jurisdiction if it is competent to hear or determine controversies of the general nature of the matter involved sub judice. Jurisdiction lies if the court had power to enter upon the inquiry, not whether it might ultimately decide that it could not give relief in the particular case." Drafto Corp. v. National Fuel Gas Distribution Corp. 806 A.2d 9, 11 (Pa.Super. 2002) (quoting Aronson v. Sprint Spectrum, L.P., 767 A.2d 564, 568 (Pa.Super. 2001), appeal denied, 566 Pa. 632, 781 A.2d 137 (2001)).

Issues pertaining to jurisdiction are pure questions of law, and an appellate court's scope of review is plenary. Questions of law are subject to a de novo standard of review. Any issue going to the subject matter jurisdiction of a court or administrative tribunal to act in a particular matter is an issue the parties cannot waive by agreement or stipulation, estoppel, or waiver. In other words, ...


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