MARIANNA S. SEDLAK, Appellant
ROGER SEDLAK, Appellee
Appeal from the Order entered June 19, 2013, Court of Common Pleas, Cumberland County, Domestic Relations at No. 974 SUPPORT 2012
BEFORE: DONOHUE, OTT and PLATT, [*] JJ.
Marianna Sedlak ("Mother") appeals from the order of court denying her petition for spousal support and setting a child support obligation for Roger Sedlak ("Father") of $50 per month. For the following reasons, we vacate the order of court and remand to the trial court for further proceedings.
Father and Mother were married in September 1989 and are the parents of four minor children. The parties lived together until Father was arrested on February 25, 2012. He has been incarcerated since that time.
Father is entitled to receive monthly payments of $799.20 from a TIAA-CREF annuity that comes from Father's inheritance from his father. From the time of his incarceration until approximately May 2012, Father directed TIAA-CREF to deposit these payments into the joint bank account that he shares with Wife. Mother used these funds to support herself and the parties' children. However, when Mother told Father of her intention to seek a divorce, Father instructed TIAA-CREF to stop the monthly deposits in the parties' joint account. Father had these funds deposited into his prison account until October or November 2012, at which time Father elected to stop receiving the payments.
Following Father's diversion of the annuity funds from their joint account, Mother filed a complaint seeking both spousal and child support. Initially, Wife's petition was denied because Father is incarcerated. Mother petitioned for a hearing de novo, at which both parties appeared pro se and testified. At the hearing, Father testified as to the amount of the monthly TIAA-CREF payments and his decision to "defer" them until a later time. N.T., 3/27/13, at 14-15. Father also testified that he earns $7.68 per month in prison as a library clerk. Following the hearing, the hearing officer entered an interim order finding Father's income to be $799.20 (the amount of the TIAA-CREF payments), and setting Father's child support obligation to be $50.00 per month, with an additional payment of $5.00 toward arrears. Interim Order, 3/28/13, at 1. In the report and recommendation the master filed contemporaneously with the interim order, he recommended dismissing Wife's request for spousal support. Support Master's Report and Recommendation, 3/28/13, at 2.
Mother retained counsel and filed exceptions, arguing, inter alia, that the master erred by determining Father's support obligation strictly on the support guidelines without taking into consideration the extraordinary circumstance of Father's incarceration, which eliminates his need for the TIAA-CREF income, and the fact that Mother has sole custody of the children, as Father is incarcerated. According to Wife, these circumstances militate in favor of an upward deviation from the guideline support figure. Exceptions to Findings of Support Master, 4/17/13, at 3-4. Mother also excepted to the fact that the support master did not allow Mother to call "her duly subpoenaed witness from [Father's prison] to testify as to Father's income received in the prison[.]" Id. at 4. The trial court dismissed Wife's exceptions and made the hearing officer's interim order final. Trial Court Order, 6/19/13.
Mother timely filed this appeal,  and she presents two issues for our review. We begin with the second issue presented, in which Mother challenges the denial of her request to call the warden of Father's prison ("Warden"), whom she had subpoenaed, as a witness. Appellant's Brief at 13-14. The record reveals that the support master did not refuse Mother's request to have the Warden testify; rather, when Mother sought to call the Warden, the Warden was not present in the prison facility where the telephonic connection for the hearing had been established. N.T., 3/27/13, at 25. Mother now argues that the master should have "made an effort to assist Mother in calling her witness, or at the very least have given Mother the opportunity to ascertain why her witness was not available." Appellant's Brief at 15. Mother did not object to the master's handling of this matter at the hearing, and so she cannot raise an objection to it now. See Thompson v. Thompson, 963 A.2d 474, 475-76 (Pa.Super. 2008). ("On appeal the Superior Court will not consider a claim which was not called to the trial court's attention at a time when any error committed could have been corrected.").
In her remaining issue, Mother argues that the trial court erred by not deviating from the amount of support determined by the support guidelines. Appellant's Brief at 9. We begin with our standard of review:
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.
Isralsky v. Isralsky, 824 A.2d 1178, 1186 (Pa.Super. 2003) (citation omitted). Our law provides that the amount of a child support obligation must be calculated according to the support guidelines, but that deviations from that amount are allowed to account for special circumstances:
Child and spousal support shall be awarded pursuant to a Statewide guideline as established by general rule by the Supreme Court, so that persons similarly situated shall be treated similarly. The guideline shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary ...