Dopico, S. v. Leone, R.

• Court: Superior Court of Pennsylvania
• Decided: September 28, 2016
• Docket: 42 WDA 2016
• Status: Unpublished

Opinion

J-S61014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHALA DOPICO IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

REMO LEONE

Appellant No. 42 WDA 2016

Appeal from the Order Entered December 12, 2015 In the Court of Common Pleas of Allegheny County Civil Division at No(s): FD-06-3722-004

BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.: FILED SEPTEMBER 28, 2016

Appellant, Remo Leone (“Father”), appeals from the order directing

him to pay Shala Dopico (“Mother”) $825.78 in child support per month.

Father argues that the trial court erred in considering evidence that it had

previously barred Mother from presenting due to Mother’s non-compliance

with a discovery order. After careful review, we affirm based upon the trial

court’s Rule 1925(a) opinion.

We take the facts and procedural history of this case from the trial

court’s opinion.

The parties are parents to a nine-year-old son, whose child support entitlement has been the subject of some litigation. Recent history begins in February 2015, where, upon a modification and compliance review, the hearing officer established an interim child support obligation of $441.24 to be paid by Father, pending the resolution of a complex master hearing. Notably, Mother’s monthly net income was determined J-S61014-16

to be $2,006.33. The ultimate case, now designated complex, was listed for a September 2, 2015 hearing date. In weeks prior to the trial, Father brought an “Emergency Motion to Preclude,” wherein he alleged Mother had not complied with his discovery requests. Mother “has failed to respond in any way to [Father’s] Request for Production of Documents … The purpose of [Father’s request] was to ascertain whether [Mother] had new or additional expenses since the support conference that she would be introducing at the hearing and to assess whether there has been a change in her income since the support conference.” This [c]ourt ordered Mother to comply within three days or she “shall be precluded from entering any documents into evidence or any evidence or testimony regarding additional expenses at the [complex support hearing.]” Mother did not so comply. The [c]ourt preserved the issue of sanctions, allowing the Master to make the appropriate determination.

At the hearing, the Master first calculated Mother’s income by relying on a figure established by the interim order seven months prior. That figure, utilized in the February 2015 temporary order, was based on Mother’s W-2 wages she earned as a hair dresser, a position she had since left. Pursuant to this [c]ourt’s August 28 order to preclude, Mother’s counsel was prevented from submitting any evidence or testimony which might demonstrate a decrease in her income. And while Father’s counsel refused to stipulate to Mother’s income, his attorney, remarkably, chose not to pursue cross-examination.

Consequently, the entirety of the hearing concerned Father’s income. Father is a self-employed mason who comingled his personal and business monies. The transcript is replete with personal purchases paid out of Father’s business account. … After factoring in the appropriate reductions, the Master determined Father’s net income to be $4,826 per month. … Father filed timely exceptions, which this [c]ourt dismissed.

Trial Court Opinion, 3/7/16, at 1-4 (citations omitted) (brackets in original).

In this timely appeal, Father argues that the trial court erred in

allowing Mother to present documents in contravention of its earlier

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discovery sanction and in including a wedding gift in his 2014 income. Our

standard of review for a child support order is well-settled.

When evaluating a support order, this Court may only reverse the trial court’s determination where the order cannot be sustained on any valid ground. We will not interfere with the broad discretion afforded the trial court absent an abuse of the discretion or insufficient evidence to sustain the support order. An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, 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, discretion has been abused. In addition, we note that the duty to support one’s child is absolute, and the purpose of child support is to promote the child’s best interests.

Kimock v. Jones, 47 A.3d 850, 854 (Pa. Super. 2012) (citations omitted).

After careful review of the parties’ briefs, the record on appeal, and

the relevant case law, we conclude that the trial court’s opinion, authored by

the Honorable Kathryn Hens-Greco, thoroughly and properly disposes of

Appellant's issues on appeal. See Trial Court Opinion, 3/7/16, at 4-7

(concluding that Mother’s documentary evidence concerned only Husband’s

income and did thus did not violate the sanction order, and that there was

no reason to disturb the Master’s credibility determination regarding the

alleged wedding gift). We, therefore, affirm the order based on the trial

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/28/2016

-4- Circulated 09/12/2016 01:21 PM Iv'I,,t!'jI )l\'\li ·i.l. () ...

I I . ' '

lN THE COURT OF cJMMON PLEAS OF ALLE~HENY COUNTY. PENNSYLVANIA j FAMILY DIVIS:1fON I Shala Dopico, OPfNION

Plai: tiff, No.: . FD· 06-03722-004 'I

v. 42 'vY.DA 20[6 I Remo Leone, I Defdnclant. BY:

I Honorable Kathryn Hens-Greco 440 Rbss Street Suite.5077 Pittsburgh, PA J 5219

COPIES TO:

Counsel for Plaintiff:

Timothy G. Uhrich, Esq. (' . 429 Forbes Ave, Suite 909 Pittsburgh, PA 15219 (', c.--

\ . \J r _ _l

-u-.. \ c,::·. r, ... ~ u) . ·-··'.• l··

:~:'·. ;·;. Counsel for Defendant:

Jennifer Lynch Jackson, Esq. .\ . •, : 1809 ~Nest Street Munhall, PA 15120 I I I I I

EXHIBIT

I c IN THE COURT OF C~MMON PLEAS OF ALLEGHENY COUNTY. PENNSYLVANIA I FAMILY DfVISlON

Shala Dopico,

Plaintiff, 1 .No.: FD- 06-03722-004

v. I '42 WDA 2016

Remo Leone, I I Def°ndant

OPlNlON I I I ,

In this matter, Defendant Remo Leone ("Father") appeals from this Court's Order of 'I I ' December I 5, 20 I 5, which/ dismissed his Exceptions to the Special Master's child support

recommendation, making f]irrnl the temporary order of September 16, 2015. Plaintiff Simla Dopico I ("iVlother") and Father appeared before the Master on September 2, 20 l 5. The Master calculated ::i I : child support award for thd parties' minor son. obligntiniFnther to pay $825.78 per month in

su pport and another $83 r{ men th in arrears, which was .set at $4,090. 3 7. Fat her took Es cept ions.

arguing, inter alia, that thiJ Court had previously barred Mother from entering any evidence on

account of her noncompl +ce during discovery. Th is cdurt dismissed those Except ions. F athei

appeals. I I

A. RETJEVANT PROCEDURAL AND FACTUAL HISTORY

The parties are parents to a nine-year-old son. whose child support entitlement has been i . .he subject of some litigal1ion. Recent history begins in February 2015, whereupon a

modification and complia ice review, the hearing office!· established an interim child support 1resol ob I igation of $44 J • 24 to ~e paid by Father, pending the urion of a com plex master hearing. I .

Notably, Mother's monthly net income was deterrninecl to be $2,006.33. See Order of Court,

dated February 27, 2015.1 The ultimate case, now clesig\\atecl complex, W8.s listed for :1 i I, I I I I I

I September 2, 201 S henrin~ date. In weeks prior to the· trial, Father brought en "Emergency

Motion to Precl ude," whejei n he alleged Mor her had not comp I ied with his cl iscovery requests.

Mother "has foiled to respbnd in any way to [Father's I Request for Production of

Documents .... The purposj of [Father's request] was to ascertain whether [Mother] had new or

additional expenses since support conference that s;he would be introducing at the hearing 1he and to assess whether therb has been a change in her in'Jorne since the support conference." See

Father's Emergenc y M otit', to Preclude, elated Augus(2 8, 20 I 5, at Para gm phs 4- 5. Th is C curt

ordered Mother to comply! within three clays or she "shall be precluded from entering any

documents into evidence ~r any evidence or testimony regarding additional expenses at the i ' I complex support hearing}!" See Order of Court, dated August 28, 2015. Mother clicl nor so I comply. The Court prese1f1ecl the issue of sanctions, allowing the Master to make the appropriate

cleterm i nation.

At the hearing, the Master first calculated Morhers income by relying on a figure

established by the interim order seven months prior. Thzit figure, utilized in the February 2015

temporary order, was basr on Mother's W-2 wages she' earned as a hair dresser, a post ti on she

had since left. Pursuant to this Court's August 28 order ,10 preclude, Mother's counsel W[IS

prevented from submitting any evidence or testimony which might demonstrate a decrease in her

.ncorne. And while F athej, s counsel re Fused Jo sti pu I ate to Mot her' s income, his a uorne y,

remarkably, chose not to dursue cross-examination.

C onsequen I I y. the rntirety of the hearing concerned Father's income. Fat 11 er is a se If

employed mason who corriingled his personal and business monies. The transcript is replete

with personal purchases ptcl out of Father's business account. Ready examples include: $175

worth of perfume and jewllry (see T.T., a1 54); beer and movie rentals (!cl .• a: L 18-J 19); a tuxedo

2 and wedding expenses (Id, at 65-66, 116); and nearly $'500 worth of fireworks (lei., at 68).

There were sri JI other quejtionable expenses: Father initial I y argued that his $2 2 2 Co111c ost cab le

bill was a business expensb in that he uses the internet to conduct his online banking. Id, ,11 56-

57. Hundreds

C] ienrs ..

advertise. except that it + of dollars o 1 expensive men ls (fd., at 76;:6 J-62) would suggest entertaining

not very cost ·C ffect i ve: Husband argued th a f he cannot afford to

Then there are expenses which Father cannot explain tId., m 68-69, relating ro

expenses incurred at a cos/ no). Even orher ex pens es. such as "work cloth es," a re not necexs at iIy

bonafide business expenses. Id., at 101-102. Finally, there was activity that appeared downright

fraudulent. Groceries bough: on Christmas Eve were almost certainly for a personal gathering

and not for a supposed hoLny party thrown for clients (Id., ar 54 ). Father spent $500 dollars :11 i ! F11111ily Dollar, where he purchased pre-paid Visa curds. ld., ar 59. Father argued that he bought . I . these cards on the advice tf his accountant; this way, his business card number would 1101 be

ex posed to fraud. f d. F "t· I also testi fled that income i\1 ihe amount of $12. 500 was actual I y a

wedding gift, but that he pllnced the funds in his business account because his personal account I was frozen for nonpayment of child support. ld., at 64; f04. I In his hearing sumlnary, the Master explained Father's business grossed $49,002 by the

terms of Father's own 20 l.4 rax return. But after reviewing the bank statements and tux returns.

il appeared to the Master t 1<1t Fm her utilized an additional $56,329 from his business. When the

ivlaste. added that sum, Fa!ther's gross income increased ro $87,31 S. After factoring in rhe

.rppropriare reductions, th~ Master determined Father's net income to be $4,826 per month. I . Because Father's nttorneylis his new spouse, the Master clicl not believe Father incurred ri cost

and rhus did not grant Fat'rr's request for attorney's fee1. See Master's Order of Col\1'1 and

3 Hearing Summary, fI elated epternber 2, 2015. Father q1ec1 timely exceptions, which this Court

dismissed. Now comes thiis appeal,

I B. DISCUSSION v er b anrn, · 1 us· ·ISSUeS are t i lre:I I

1. The Spe.cial Maste1 abused his discretion and/or committed an e1TOr of law by allowing [Mother! to enter clpcuments into evidence in contravention of the trial court's orcler dared A\1gust 28.', 2015, sanctioned [Mother] fordiscovery violation.sand ':18ncloted, inter 1 hich be precluded from enterrng any documents into evidence" at the alia, that, Mother fhall Complex Support lflearing. Father was severely prejudiced in that he was unable to establish Mother's ~aming capacity due to the fact that she foils to produce a single item requested in disco1ery. Yet, the Special Master allowed Mother to introduce documents supplied by Father rn discovery to attempt co esra blish Father's earning capacity. 1

2. The Special Mastel! erred in including wedding gift monies in his calculation of Father's 2014 "income," wliich he used as Father's earning capacity. In determining income for support purposes, the trial court "may not include.income constituting marital property under 23 Pa.C.S. §~501." Berry v. Berry, 898 A.2.d I 100, I 104 (Pa.Super. 2006). ! See Father's "Concise Statbment of Matters of Appeal." Father raises two issues: (i) evidence or !

Father's expenses and (ii) the inclusion of the supposed wedding gift.

(i) Bank Statements

The Court first nots that Father does not ch a I lenge the Master's math in est ab Ii sh ing his

or Mother's monthly net income, nor does he challenge the consequential support calculation I based on the parents' com~ined monthly net incomes. Instead, Father argues is that Mother I should not have been ablelto present documentation of Father's questionable expenses during the

hearing, pursuant to this dourt's preclusion order, date)August 28, 20 I 5; see also T.T., at 4.

But this _Court's preclusiot order on! y precluded Mother from presenting evidence or rest i mony

regarding [Mother's] additional expenses .. The reason t7r the preclusion was to prevent Mother

trorn introducing any ev1d/ence of her own mcorne and ef-pense which she refused to first supply

to opposing counsel during discovery. As Father's counsel readily admits, the Court did not I

I 4 ' I

preclude Mother from cross-examining Father. After Father introduced his tax returns and

testified about his income! Mother sought to impeach \::-arher's testimony by cross-examining I Fat her with his bank state1r1ents. Father cl id not object to either th is Ii ne of quest ion i ng or to

Mother's use of a trial aid, See generally T.T., at 44-48.

At the conclusion lrI the trial, Father seeming!}( acknowledged the improper expenses . 011

the tax returns before reqLjesting that the Master only Hold Father to what was officially claimed I , on the return. Id .. at 139, lines 8-12. Father hypothesized that his income should be determined

to be. bet.ween $10,000 anll $30,000 gross per year. Th'is figure is extraordinarily low when considering the number and types of non-business expenses Mother was able ro extract during

her cross-examination of Jather. Evidently, Father feel~ that the Court was constrained to 8

tigure in this ballpark because Mother never should have been able to question him with

documentation, a supposJ misfeasance to which she failed to even object. The reasoning fails. I Father also claims r,e was unable to establish Mother's earning capacity, because he \Ai[IS

I "severely prejudiced" wh111 Mother failed to answer discovery requests. This is not so.

Incredibly, Father chose nf t to cross-examine Mother about her work or earning history. her

expenses, her household, lier education, her time in the workforce, and so forth. The answers 10

nil of these questions wou1d have enabled Father to put forth an argument that Mother should be

set at a higher earning capacity, Father's choice not to question Mother was his own misstep.

(ii) Wedding Gift

Next, Father mgue1 that this Court improperly included his wedding gift as income when

fashioning the child supp+ award. Father argues income for purposes of child support cannot

.nclude marital property. He cites 23 Pa.C.S. §3501 and Berry v. Berry, 898 A.2d 1100, I I 04

(Pa.Super. 2006). But the tuestion is not whether the Master included the gift as income. The

I 5

I I i question is whether the income was a gift. To be clear, 11\e Master's child support calculation was

a I so a cred ib i Ii ty detern,in,tion. When confronted with suspect transactions, Father repented I y and

quire unpersuasively alleged that the expenses were rill n part of his business - a business that sees

nearly $200,000 in incornel but a business that pays its oi1'11ier between S J 0,000 and $30,000

because of the astronornij "cost of goods" the business incurs. These "costs" evidently included

trips to casinos, expensive rinners, a tuxedo, fireworks, and hundreds of dollars of prepaid check

cards that cannot be tracedl Time and time again, Farherdeflected the questions by saying he only

did what his accountant su~ested. The Master made a credibility determination, and apparent I y

found Father to be less than truthful. ln terms of the wedding gift, Father first testified that he II I

received a $25,000 Joan. Sf T.T., Zit 104. He corrected himself and stated that the sum was a gift, I

which he and his new wife/split equally. fd. He testified 'that he put this gift in his business

account, because his other I ccounts were frozen for nonpayment of support. Id. He argues th8l he

clicl not want to get "jarnm cl up" while trying to pay for the weclcling. But because Father

corninglecl virtually all of I is income, and because Farhers testimony was so blatantly unreliable,

the Master did not e1T when he determined that income in1Fnther's business account should be I

labeled as income for purptses of child support. Father le;ft the Master with no other choice.

C. CONCLOSION I

When the Court prbcluded Mother from presenting documentation of her own expenses,

1t did not grant Father lea~e to submit a child support recommendation that is more akin to a

wish list than an fair read tf I his finances, . Father chose riot to question Mother, and in the

absence of his cross-exam nation and in light of this Court's preclusion, the Master wax

practica I l 11 y bound to the pr1 v ious support determination. ; Fat her' s true contention, of course, was

Mot her' s cross-exa Ill inatir of his testimony and e videnr. Mother was able to adeq LI arc I)'

I 6 I impeach Father's financialdocumentation and his testimony about his business expenses. In

doing so, Mother did not r 111 afoul of this Court's preclusion order. And in light of Father's

tes ti men y on cross-ex a mi ,Lion, the Master did not err when he incl ucled the pu rportecl "wecld i ng

gift" as income.

BY THE COURT:

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