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K.J.P. v. R.A.P.

Superior Court of Pennsylvania

May 22, 2013

K.J.P., Appellee
v.
R.A.P., Appellant

Appeal from the Order Dated June 20, 2012 In the Court of Common Pleas of Berks County Civil Division at No(s): 07-00396 PACSES NO. 225108901

BEFORE: BENDER, J., SHOGAN, J., and FITZGERALD, J.[*]

OPINION

BENDER, J.

R.A.P. (Father) appeals pro se from the June 20, 2012 order that denied his exceptions to the Master's Report and Recommendation in which he claimed inter alia that the Master erred by failing to deduct from his 2010 income the net loss of $115, 000 from the sale of property that Father used as his residence, thus, impacting the calculation of his income available for child and spousal support. We affirm.

The pertinent factual and procedural history of this case was gleaned from the trial court's opinion, dated September 13, 2012, its discussion and order, dated June 20, 2012, and documents and transcripts contained in the certified record. Father and K.J.P. (Mother) were married on February 16, 1984, and divorced on April 5, 2011. The parties stipulated that they separated on March 8, 2007. They are the parents of one child born in February of 1994. Mother filed a support action in 2007, seeking both child and spousal support. Hearings were held before a Master, who issued a report and recommendation on February 6, 2012, that covered the time-period from March 8, 2007, to the present. It appears that the extended delay in issuing a final support order was caused by changes in the parties' incomes, changes in the custody of the child, and two appeals to this Court. See Perry v. Perry, 991 A.2d 368 (Pa.Super. 2010) (unpublished memoranda); Perry v. Perry, 998 A.2d 996 (Pa.Super. 2010) (unpublished memoranda). Of particular note are the numerous changes in Father's employment over the years, which caused his income to vary substantially.[1]

Following Husband's filing of exceptions to the Master's report and recommendation, the trial court entertained briefs and argument. One of Father's exceptions involved a date relating to one of his periods of employment. At argument before the trial court, the parties stipulated that the noted date was incorrect and agreed upon a corrected date. That exception is not at issue in this appeal. See Trial Court Opinion, 6/20/12, at 1. The other exception, which the court dismissed in its June 20th order, involved Father's claim that, when calculating his income for support purposes, the Master failed to include the loss Father suffered in the sale of his property in New Jersey. The trial court reviewed this issue briefly in its discussion accompanying its June 20th order, stating:

The only issue before the [c]ourt, therefore, is whether the master properly excluded from Father's income the net loss he suffered at the time his [sic] sold the piece of real estate located in New Jersey. While Father attempted to characterize this real estate as a commercial holding because he has regularly engaged in such activities, he acknowledged that he resided in the house up to the time he relocated to Canada for his job, at which point he sold the residence. In other words, regardless of how this property was held and regardless of the fact that Father has owned real estate for business purposes, this particular property was his primary residence.

Trial Court Discussion and Order, 6/20/12, at 1.

The court provided a much more in depth explanation of the factual basis underlying its decision in its Pa.R.A.P. 1925(a) opinion. The court acknowledged that the Master found the sale of the New Jersey property to be a sale of a personal residence, based on the following evidence of record:

The Support Master heard evidence relating to the New Jersey Property, which is the subject of the within appeal. At the outset we note that real estate investing is not [Father's] primary source of income. Rather, since approximately 1990, [Father] has been employed by various high-tech electronics or telecom companies in various marketing and product development capacities. In addition to his full-time, corporate employment, [Father] has historically engaged in real estate investing. [Father] described this investment activity at the Master's hearing. Specifically, [Father] testified that he has "purchased, renovated, and resold properties, as well as purchased, renovated, and rented properties, " owning as many as 20 properties at a given time. He described himself as a house "flipper, " and explained that, depending on the applicable tax rules and regulations, he has at times resided in his investment properties and at other times chosen to rent a home for himself while owning other properties, depending on the relevant tax implications.
When asked specifically about the New Jersey Property, [Father] testified that he used the house on 60 (unintelligible) Lane, as "as my legal address" (this was apparently understood by all parties at the Master's Hearing to be the New Jersey Property). He further testified that he intended to purchase the New Jersey Property with a partner and to "invest money in it, renovate it, and sell it for a profit and generate positive income." There was no evidence that [Father] followed through with that plan. [Father] testified that at the same time he owned an investment property located in Pennsylvania, which was occupied by tenants. [Father] purchased the New Jersey Property on July 10, 2008. [Father] moved into the New Jersey Property in August or September of 2008, lived there, and moved out on August 23, 2010, when he relocated to Canada. Crucially, when questioned by the Hearing Master, [Father] acknowledged that the New Jersey Property was his primary residence for the approximately two-year period prior to [Father's] relocation to Canada.

Trial Court Opinion (T.C.O.), 9/13/12, at 2-3 (citations to the record omitted).

Based upon these facts, the definition of "income" in the Domestic Relations Code at 23 Pa.C.S. § 4302, and directives contained in the Support Guidelines at Pa.R.C.P. 1910.16-2(a)(2), the court determined that although Father had a history of "dealing in property, " any proceeds he might have garnered from the sale of his home could not be considered "income" for support purposes and that a loss from the sale cannot be offset against other income, such as wages. Accordingly, the court dismissed Father's exception concerning the $115, 000 loss he suffered from the sale of his residence and Father filed this appeal.

Father's central question deals with the treatment of the $115, 000 loss he experienced when he sold the New Jersey property, however, he sets forth the ...


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