Fennell v. Fennell

753 A.2d 866, 2000 Pa. Super. 166, 2000 Pa. Super. LEXIS 729
CourtSuperior Court of Pennsylvania
DecidedJune 1, 2000
StatusPublished
Cited by50 cases

This text of 753 A.2d 866 (Fennell v. Fennell) 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.

Bluebook
Fennell v. Fennell, 753 A.2d 866, 2000 Pa. Super. 166, 2000 Pa. Super. LEXIS 729 (Pa. Ct. App. 2000).

Opinions

TODD, J.:

¶ 1 George C. Fennell (Father) appeals the June 23, 1999 Order of the Court of Common Pleas of Butler County setting the amount of his child support obligation to Patricia A. Fennell (Mother) for the parties’ two minor children.1 Specifically, Father argues that the trial court erred in including his proportional share of the retained earnings of a Subchapter S corporation as income available for support. For the reasons that follow, we reverse that portion of the trial court’s order.

¶ 2 Father is the owner of 19% of Muscle Products Corporation (“Muscle Products”). Muscle Products is incorporated as a Subchapter S corporation. The other owners of the company are Appellant’s brother, father and an unrelated individual.

¶ 3 For tax year 1998, in addition to his salary, Father reported $23,863 as income from Muscle Products on the parties’ joint tax return. The trial court found that Father did not receive these funds in cash from Muscle Products for his personal use during 1998. Instead, this amount represented Father’s proportional share of the corporation’s retained earnings. As a Subchapter S corporation, Muscle Products may elect “to avoid tax at the corporate level and require the individual shareholders to pay tax on corporate earnings whether or not distributed to the shareholders.” Attebury v. U.S., 430 F.2d 1162, 1163 n. 2 (5th Cir.1970).2

¶4 The trial court found that Muscle Products’ “practice of retaining earnings had been in place ... prior to the parties’ separation.” (Trial Court Opinion, 6/23/99, at 4.) The court further found that the decision to retain earnings had been a “business decision,” that Muscle Products had “retained these earnings for investment purposes” (Trial Court Order, 7/16/99), and that the company had used them to grow the business. (Trial Court Opinion, 6/23/99, at 7.) There was no finding in the present case that the retention of earnings in Muscle Products in any way constituted an effort to shield income from Father’s support obligation.

¶ 5 Nevertheless, the trial court held that the retained earnings “do represent income available to [Father] for purposes of computing his on-going obligation of support.” (Id. at 6.) Thus, the court deter[868]*868mined that beginning January 1, 1999, Father’s proportional share of the retained earnings of Muscle Products would be deemed to be income available to Father for support purposes. The court further determined that the retained earnings figure from the parties’ 1998 tax return would be used to estimate Father’s 1999 income in order to calculate his monthly support obligation. (Id. at 7.)

¶ 6 Our standard of review in matters of support is' whether the trial court abused its discretion. Zullo v. Zullo, 531 Pa. 377, 380, 613 A.2d 544, 545 (1992). We may find an abuse of discretion only upon “proof of more than a mere error in judgment.” Simmons v. Simmons, 723 A.2d 221, 222 (Pa.Super.1998). Instead, such a finding requires clear and convincing evidence “that the law was misapplied or overridden, or that the judgment was manifestly unreasonable or based on bias, ill will, prejudice, or partiality.” Id. We are guided by the principle that a support award “must be fair, non-confiscatory and attendant to the circumstances of the parties.” Calabrese v. Calabrese, 682 A.2d 393, 396 (Pa.Super.1996) (citation omitted).

¶ 7 It is well settled that “[i]n determining the financial responsibilities of the parties to a dissolving marriage, the court looks to the actual disposable income of the parties.” Labar v. Labar, 557 Pa. 54, 59-60, 731 A.2d 1252, 1255 (1999) (quoting Cunningham v. Cunningham, 548 A.2d 611, 612-613 (Pa.Super.1996)). Moreover, the Pennsylvania Supreme Court has adopted the reasoning often employed by this Court that such “income must reflect actual available financial resources and not the oft-time fictional financial picture” created by the application of federal tax laws. Id. (citations omitted).

¶ 8 We have held repeatedly that deductions or losses reflected on corporate books or individual tax returns are irrelevant to the calculation of available income unless they reflect an actual reduction in available cash. For example, in Heisey v. Heisey, 633 A.2d 211, 212 (Pa.Super.1993), we considered the calculation of the income of a sole owner of an incorporated insurance business. We held that the trial court had erred in deducting from income “a ‘loss’ shown on the corporate federal income tax return that has no relevance in determining actual cash available for support.” Id. Accord McAuliffe v. McAuliffe, 613 A.2d 20, 22 (Pa.Super.1992) (“Depreciation and depletion expenses that are allowed under federal income tax law will not automatically be deducted from gross income for the purpose of determining support responsibilities.”); Flory v. Flory, 527 A.2d 155, 157 (Pa.Super.1987) (trial court erred by calculating father’s income based on income reported on tax return alone; “[fjederal income tax law permits deductions that may not reduce a parent’s disposable income”).

¶ 9 We have held as well that all benefits flowing from corporate ownership must be considered in determining income available to calculate a support obligation. In Heisey, we stated that even if not received by the support obligor as cash, “personal perquisites, such as entertainment and personal automobile expenses, paid by a party’s business must be included in income for purpose of calculating support.” Heisey, 633 A.2d at 212. Accord Calabrese, 682 A.2d at 396 (“It is clear that automobile expenses paid by a company for the payor spouse are properly included in the determination of the payor’s available income.”).

¶ 10 Our jurisprudence is clear, therefore, that the owner of a closely-held corporation cannot avoid a support obligation by sheltering income that should be available for support by manipulating salary, perquisites, corporate expenditures, and/or corporate distribution amounts. By the same token, however, we cannot attribute as income funds not actually available to or received by the party.

[869]*869¶ 11 In Labor, the Pennsylvania Supreme Court stated that “[i]t would be untenable to argue that proceeds of a loan made to a corporation for the exclusive purpose of making capital expenditures should instead be disbursed as income to the two principal shareholders of the corporation.” Labar, 557 Pa. at 62, 731 A.2d at 1256. Similarly, in Calabrese, this Court affirmed the trial court’s calculation of the gross income of a 50% owner of a corporation. Calabrese, 682 A.2d at 396.

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Cite This Page — Counsel Stack

Bluebook (online)
753 A.2d 866, 2000 Pa. Super. 166, 2000 Pa. Super. LEXIS 729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fennell-v-fennell-pasuperct-2000.