Allen, J. v. Kaliszewski, C.
This text of Allen, J. v. Kaliszewski, C. (Allen, J. v. Kaliszewski, C.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
J-S25028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JENNIFER ALLEN : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : COREY M. KALISZEWSKI : : Appellant : No. 1702 WDA 2017
Appeal from the Order Entered October 24, 2017 In the Court of Common Pleas of Erie County Domestic Relations at No(s): Docket No. NS201400549, PACSES Case No. 715114581
BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 7, 2018
Corey Kaliszewski appeals from the order decreasing his monthly child
support payment to Jennifer Allen.1 Kaliszewski claims the court erred in
concluding that he did not have primary custody of the parties’ child and that
the record supports an end to his liability for child support payments to Allen.
He also contends the court erred in failing to set forth adequately the support
guidelines and its reasons for deviating from them. We affirm.
We begin with the bedrock principle that a parent has an absolute duty
to support his child. See Kimock v. Jones, 47 A.3d 850, 854 (Pa. Super.
2012). The guiding policy in child support determinations is the best interest
of the child. See id.
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1 Allen has not filed an Appellee’s brief. J-S25028-18
We may reverse the court only where there is no valid ground supporting
it. See id. The court has broad discretion in determining the facts and equities
based upon the evidence before it. See id. The court does not abuse its
discretion merely by committing an error of judgment. See id. An abuse of
the court’s discretion only occurs if “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[.]” Id.
(citations omitted).
The parties are parents of one child, currently five years old. The custody
order provides for a 50/50 split of physical custody. The conference officer
recommended that Kaliszewski pay Allen $475.182 per month in support of
the child. Kaliszewski requested a de novo hearing before the Court of
Common Pleas.
At the de novo hearing, the primary factual issue was the de facto
physical custody history. Kaliszewski asserted that he had physical custody of
the child 54% of the time in 2017.3 In support, he provided exhibits
demonstrating the number of nights during the year each party had physical
custody. He also presented an exhibit containing text messages from Allen
2 Neither party has ever challenged this number. As noted, Kaliszewski challenges only the finding that he has any liability to Allen.
3 The court disagreed with Kaliszewski’s math: by its calculations, Kaliszewski’s numbers equated to 53% of the time in 2017. This discrepancy is ultimately irrelevant to our analysis.
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requesting him to take, or retain, physical custody of the child for times when
Allen was entitled to custody under the custody order.
In contrast, Allen testified that the parties generally followed the 50/50
physical custody split. Any deviation from the scheme provided by the custody
order was the result of Allen honoring the order’s directive that if a party
needed a babysitter, the other parent was to be given first priority to fill the
role.
The court found Allen’s testimony credible. It concluded the de facto
physical custody history was not materially different from the 50/50 scheme
set forth in the custody order. However, it found that Kaliszewski provided
Allen with additional indirect economic aid such as significant periods of free
baby-sitting. The court thus concluded that Kaliszewski’s support payments
should be reduced.
Kaliszewski’s first two issues on appeal both turn on the same issue. 4
He contends he should have no liability to Allen, since he believes he has de
facto primary physical custody. However, the court found the parties still
generally followed the 50/50 split of physical custody set forth by the custody
order. While Kaliszewski presented a strong case for a modification, we can
glean no reason from the record for disturbing the court’s credibility
determinations. Nor can we conclude the court’s determination that
4 Indeed, Kaliszewski’s brief combines the arguments on the first two issues into a single section.
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Kaliszewski pay Allen child support constitutes an abuse of the court’s broad
discretion.
Kaliszewski focuses on the court’s reliance on an alleged discovery
violation in finding his evidence not credible. Specifically, the court notes that
it discredited Kaliszewski’s exhibit documenting the physical custody split in
2017 due to “his failure to provide [Allen] with a copy of the document in
advance of the de novo hearing, despite her having asked for it two months
earlier.” Trial Court Opinion, 12/15/17, at 4.
We acknowledge the court’s reasoning is troublesome in light of
Pa.R.C.P. 1930.5(a) (mandating no discovery practice in simple support
procedures). However, our review of the record indicates that even if we were
to conclude this constituted a misapplication of the law, we do not believe it
was an error that controlled the outcome. The court did not only find
Kaliszewski’s exhibit non-credible. It also found Allen’s testimony credible.
This is an independent credibility determination that supports the court’s
decision.
Furthermore, the court credited Kaliszewski’s assertions that he
provided a significant amount of baby-sitting for Allen’s benefit. Thus, the
primary point of dispute is not the court’s explicit credibility determinations,
but rather, its determination that any deviation from the 50/50 split in physical
custody was de minimus, and amounted to no more than normal flux in
scheduling. After reviewing the record and Kaliszewski’s arguments, we
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cannot conclude the court abused its broad discretion in reaching this
conclusion. Kaliszewsi’s first two issues on appeal merit no relief.
In his third and final issue, Kaliszewski argues the court erred by not
providing an explicit calculation supporting its award of $200 per month in
child support in favor of Allen. The court notes that the parties’ incomes and
earning capacities were not in dispute at the de novo hearing. Nor did either
party challenge the conference officer’s calculation of the guideline amount.
The only dispute centered on whether the de facto physical custody history
established that Kaliszewski exercised primary physical custody.
We agree with the court that, under these circumstances, it was not an
egregious oversight to fail to set forth the guideline support calculation and
result. The parties were fully aware of these numbers, and neither had seen
fit to challenge their accuracy.
Furthermore, the court was not required to provide a detailed, point by
point recitation of the factors it used and weighed in arriving at the downward
deviation awarded to Kaliszewski. See E.R.L. v. C.K.L., 126 A.3d 1004, 1008
(Pa. Super. 2015). “[O]nce the court has properly consulted the guidelines, it
has the discretion to deviate from the guidelines figure, as long as the court
provides adequate reasons for the deviation.” Silver v. Pinskey, 981 A.2d
284, 296 (Pa.
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