Superior Court Upholds Trial Court’s Substantial Upward Deviation In Support Due To Payor’s New Wife’s Substantial Income And Payment Of Payor’s Living Expenses
Originally published in Pennsylvania Bar Association’s Pennsylvania Family Lawyer Volume 37, Issue No. 3, September 2015
J.P.D. V. W.E.D., 114 A.3d 887 (Pa. Super. 2015).
Father filed a petition to modify his child support obligation due to the expiration of the alimony term. The Court of Common Pleas of Allegheny County (Mulligan, J.) determined that an upward deviation of more than 100 percent due to father’s new wife’s income and her payment of father’s living expenses was appropriate. Father timely appealed to the Superior Court of Pennsylvania (Ford Elliott, P.J.E., Bowes and Donohue, JJ) which affirmed Judge Mulligan’s order of court.
FACTUAL AND PROCEDURAL HISTORY
Mother and father are the parents of two minor children. Mother and father were divorced in 2008. Pursuant to the parties’ property settlement agreement, mother received monthly support from father allocated $1,500 for child support and $300 for alimony for a period not to exceed 60 months. The alimony period was set to expire on Aug. 31, 2013.
On May 1, 2013, father filed a petition seeking to modify his child-support order due to the upcoming expiration of the alimony term.
On Sept. 6, 2013, the parties attended a support conference. At the conclusion of the conference, the conference officer terminated alimony but did not modify father’s $1,500 per month child support payment.
The parties subsequently appeared with their experts for a hearing before Hearing Officer Peggy Lynn Ferber. Both parties submitted expert testimony as to father’s earning capacity. Father’s expert assessed him an earning capacity of $45,725 on account of his level of experience as a computer operator and network administrator without formal education and without any current certifications. Mother’s expert assessed father’s earning capacity at $70,833. Father testified that he earned a salary of $20,000 working 50 hours per week. There were no issues as to mother’s income or expenses as she was an elementary school teacher earning $51,903 for the 2013-2014 school year and her monthly expenses ranged from $3,820 to $4,320.
The hearing officer entered a recommendation and interim order requiring father to pay $926 per month retroactive to the filing date.
Mother filed exceptions arguing that the hearing officer erred by 1) crediting father’s expert more than her expert, 2) failing to add back 100 percent of father’s expenses that father testified were paid by his current wife and 3) failing to deviate from the guidelines. Father filed cross-exceptions arguing that Hearing Officer Ferber erred in determining his earning capacity.
After oral argument, Judge Mulligan determined that father’s net income was $45,725 annually, as propounded by father’s expert. Mother was given both dependency exemptions for the children and the appropriate shared-custody adjustment was applied. However, Judge Mulligan ultimately awarded mother $1,365 in child support — deviating upward by $701 from the presumptive guideline amount of $665.
Father appealed asserting that Judge Mulligan abused her discretion in deviating from the child-support guideline in an amount in excess of 100 percent of the guideline amount.
SUPERIOR COURT’S ANALYSIS
President Judge Emeritus Ford Elliott, writing for the Superior Court, noted that its standard of review in child-support matters is the abuse-of-discretion standard such that a trial court’s determination should not be disturbed unless it “cannot be sustained on any valid ground.”
The Superior Court reviewed the applicable Pennsylvania Rules of Civil Procedure noting the “rebuttable presumption that the amount of the award determined from the guidelines is the correct amount of support to be awarded.” Pa. R.C.P. 1910.16-1(d). The Superior Court also reviewed the deviation rule, Pa.R.C.P. 1910.16-5, which requires the trier of fact to specify, in writing, the reasons for the deviation and outlining factors for the trier of fact to consider when deciding whether to deviate from the guidelines.
In affirming Judge Mulligan’s order of court, the Superior Court noted “that [father] does not pay for any of his own expenses, such as mortgages, car payments, utilities, or entertainment.” Based on father’s testimony it was also undisputed that father’s new wife earned approximately $1 million net annually and the Superior Court noted the luxurious life that father and his new wife lead. Father testified that “he does not even open the mail,” and that his wife takes care of all the finances. By his own testimony, father seemed to have little information about his household finances.
As a result, the Superior Court found that the evidence supported Judge Mulligan’s determination that all of father’s income was available for child support.
Regarding father’s argument that Judge Mulligan erred by deviating by over 100 percent of the guidelines amount, the Superior Court reviewed its previous findings in Suzanne D. v. Stephen W., 2013 Pa. Super 93. In Suzanne D., the Superior Court upheld the trial court’s findings that while father’s monetary gifts received from his grandfather were not income for support purposes, they could be considered as a basis in awarding the payee spouse an upward deviation from the guidelines. The monetary gifts from grandfather, combined with the disparity in incomes between father and mother and grandfather’s payment of additional expenses on behalf of both father and the children, justified an upward deviation from the guidelines of $500 per month. In the instant case, father attempted to distinguish the facts of Suzanne D. by explaining that his income is comparable to mother’s income. The Superior Court did not find this difference material.
The Superior Court also emphasized that Judge Mulligan recognized that the upward deviation in the instant matter was substantial but that father’s child-support obligation was only about 37 percent of father’s earning capacity and therefore father had sufficient funds to meet his own reasonable living expenses.
CASE NOTE AUTHOR’S EDITORIAL COMMENTS
This case is notable given the substantial deviation from the guidelines in this matter.
As practitioners, we are often faced with cases where a party, or both parties, have remarried. While it is commonly understood that the new spouse’s income is not income directly available for support, this case reinforces the notion that the other spouse’s income can provide justification for deviation from the guidelines to the extent it makes the payor spouse’s income more available for support. The support guidelines generally assume that a party will need to use a substantial portion of his or her own income to pay their personal expenses. In the instant matter; however, that was not the case. Father may not have needed any of his income to support himself. The take-away is that when a payor’s new spouse has significant income such that there is a substantial difference between the payor spouse’s income and his or her new household’s aggregate income, a deviation in the support guidelines may be appropriate and could be substantial assuming the party arguing for deviation can prove such a difference by competent evidence.
It is believed by this practitioner that this matter represents extraordinary circumstances and that the guidelines continue to represent the presumptively appropriate support amount, even when a party or both parties have remarried. It was father’s cluelessness about the finances of his household that seemed to weigh heavily against him in the instant matter.
I would be interested to see a Superior Court opinion in a case where the payee spouse is remarried to another who has income such that there is a large disparity between the payee’s income and the total household income and if perhaps this scenario would justify a substantial downward deviation in the guideline amount to the same or a similar effect as the court deviated upward in the instant matter.