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Suzanne D. v. Stephen W.

April 22, 2013

SUZANNE D. APPELLEE
v.
STEPHEN W. APPELLANT



Appeal from the Order of December 21, 2011 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD 08-007936-016

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

J-A32023-12

BEFORE: MUSMANNO, J., WECHT, J., and COLVILLE, J.*fn1

OPINION BY WECHT, J.:

Stephen W. ("Father") appeals from the December 21, 2011 order dismissing in part and granting in part his exceptions to the August 5, 2011 hearing officer's recommendation for child support. Suzanne D. ("Mother") cross-appeals from the same order, which granted in part and dismissed in part her cross-exceptions. After careful review, we affirm.

The trial court summarized the case history as follows:

Mother and Father were married on May 15, 1993 and separated in December 2007. Two (2) minor children were born of the marriage: [J.W.] and [C.W.] ("Children"). The parties enjoy equally shared physical custody of the Children. Mother filed a Complaint in Divorce on May 13, 2008. Following trial to address the parties' economic claims, Hearing Officer Miller (then acting as Master) entered a Report and Recommendation dated August 31, 2009. Both parties filed Exceptions, then entered into a Consent Order of Court dated October 28, 2009 withdrawing their Exceptions and making the August 31, 2009 Report and Recommendation a Final Order of Court. The August 31, 2009 Recommendation provides, in relevant part, "A guideline child support order shall be entered based upon the parties' actual net incomes with alimony." A Decree in Divorce was entered in November 6, 2009.

On May 5, 2010, Mother presented a Petition to Schedule Child Support Hearing, as no child support order had been entered pursuant to the August 31, 2009 Recommendation. The parties attended a support conference/hearing on September 7, 2010, at which time the matter was declared complex, and an Interim Order was entered requiring Father to pay $1,200 per month plus $250 per month toward arrears. The parties stipulated that the effective date of the Order would be January 1, 2010. On April 27, 2011, Mother filed a Motion to Award Counsel Fees, Costs and Expenses pursuant to 23 Pa.C.S.A. § 4351(a). An Order of Court was entered that same day consolidating Mother's counsel fee claim with the complex support hearing. Two (2) days of trial were held before Hearing Officer Miller on May 3, 2011 and July 21, 2011.

On August 5, 2011, Hearing Officer Miller entered a Recommendation and seven (7) page Explanation. The Recommendation provided, in relevant part, that Father was to pay $1,347 per month from January 1, 2010 through December 31, 2010, and $1,547 per month from January 1, 2011 onward. The Hearing Officer found Mother and Father's net monthly incomes to be $4,690 and $11,576, respectively, in 2010, and $2,597 and $12,164 per month, respectively, in 2011. The Hearing Officer further recommended that Mother should not be responsible for any of the Children's medical expenses in 2010, as father was fully reimbursed for said expenses by his father, Paternal Grandfather [James W., Sr.]. As Paternal Grandfather did not reimburse Father for any medical expenses after September 1, 2010, Hearing Officer Miller recommended that Mother be responsible for 18% of the [C]hildren's unreimbursed medical expenses in 2011, provided that Mother agrees in advance that the medical providers are appropriate. Similarly, it was further recommended that Mother should contribute 18% toward the Children's extracurricular activities, provided that the parties agree in advance that said activities are reasonable and appropriate. Mother was not required to contribute toward extracurricular activity expenses in 2010. Arrears were set at $13,857.20 as of August 5, 2011. Finally, Hearing Officer Miller recommended that Father pay $22,000 toward the $31,257 in counsel and expert fees incurred by Mother in the course of the child support litigation.

Exceptions and Cross-Exceptions to the Hearing Officer's Recommendation were filed by Father and Mother, respectively. Briefs were submitted and oral argument was held on October 28, 2011. On December 21, 2011, this Court entered an Order disposing of both parties' Exceptions. The Order provided, in relevant part, for a $500 upward deviation in Father's support obligation due to the funds received by Father from Paternal Grandfather. As Paternal Grandfather stopped reimbursing Father for medical expenses after September 1, 2010, the Court ordered Mother to pay 29% (her share of the income in 2010) of the $3,440 in unreimbursed medical expenses incurred by Father during the time period from September 2, 2010 until December 31, 2010. This amount, $997.60, was deducted from Father's arrears balance. The Court required Mother to contribute 18% toward unreimbursed medical expenses in 2011, and did not make any requirement for Mother's approval of medical providers. The Court deferred to the Hearing Officer's recommendation that Mother contribute 18% toward extracurricular activity expenses in 2011, but removed the provision that the parties must agree in advance that the activities are reasonable. The Court did not require Mother to contribute toward extracurricular activity expenses incurred in 2010. As it appeared to this Court that Father's arrears were correctly calculated, the Court remanded that matter to Hearing Officer Miller as a precautionary measure only, and specifically instructed the Hearing Officer to give Father credit for all payments made since the entry of the September 7, 2010 Interim Order. No credit was given for medical and extracurricular expenses paid by Father, except for the $997.60 credit for Mother's share of the 2010 unreimbursed medical expenses. The Court deferred to the Hearing Officer's recommendation regarding counsel fees.

Father filed a timely Notice of Appeal on January 17, 2012 and his Statement of Matters Complained of on Appeal on February 8, 2012. Mother filed a Notice of Cross-Appeal on January 23, 2012 and her Statement of Matters Complained of on Appeal on February 6, 2012.

Trial Court Opinion ("T.C.O."), 3/16/2012, at 1-4 (citations to record and footnote omitted).

Father presents five issues for our review:

1. Whether the Trial Court committed an error of law or abused its discretion in finding that the additional funds provided to [Father] by his father were gifts rather than loans?

2. Whether the Trial Court committed an error of law or abused its discretion in finding that the additional funds provided to [Father] by his father, if found to be gifts, warranted an upward deviation from the Support Guidelines?

3. Whether the Trial Court committed an error of law or abused its discretion in finding that the facts and circumstances of this case and the applicable law warranted an upward deviation from the Support Guidelines?

4. Whether the Trial Court committed an error of law or abused its discretion in finding that the additional expenses in 2010 for health care and for extracurricular activities for the children should not have been allocated between the parties and that the basic support obligation should not have been adjusted, because the funds used to pay those expenses came from [W.] family Trusts or were reimbursed by [James A. W., Sr.]?

5. Whether the Trial Court committed an error of law or abused its discretion in deferring to the Hearing Officer's recommendation for an award to Mother for attorney's fees, in applying a needs allocation standard to Mother's claim for attorney's fees, and/or in otherwise awarding attorney's fees and expenses of $22,000, under the facts and circumstances of this child support case?

Father's Brief at 10.

Mother presents one issue in her cross-appeal: "Did the Trial Court commit an error of law or abuse its discretion when it concluded that the regular periodic and regular transfer of cash by [Father's] father to [Father] was not income available for support, even though the transfers were made at [Father's] request, used to maintain his lifestyle and amounted to over $350,000 for the period in question?" Mother's Brief at 44.

We review a child support order for a clear abuse of discretion. Isralsky v. Isralsky, 824 A.2d 1178, 1186 (Pa. Super. 2003). Such an abuse of discretion is shown by a misapplication of law or an unreasonable exercise of judgment. Id.

Father's first issue challenges the determination that the money he receives from his father, James A. W., Sr. ("Grandfather"), is a gift. Father argues that the money he received was a series of loans that he is obligated to repay. Father points to the demand note that he signed and his intention to repay the money as evidence of a loan. Finally, Father notes that, if he does not repay the loan, the balance will be deducted from his inheritance. Father argues that, because the money was a loan, the trial court erred in considering it a gift. Father's Brief at 18-21.

Mother urges us to find that the trial court was acting within its discretion when it concluded that the payments were gifts. Mother asserts that the evidentiary record supports the trial court's conclusion. Mother also contends that the demand note is not proof that the payments were loans because the note only requires payment of the lesser amount of three options: $100,000, which is less than Father has ...


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