Groff, M. v. Groff, A.

• Court: Superior Court of Pennsylvania
• Decided: May 24, 2022
• Docket: 956 MDA 2021
• Status: Unpublished

Opinion

J-S01016-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MATTHEW GROFF : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ASHLEY GROFF : No. 956 MDA 2021

Appeal from the Order Entered June 17, 2021 In the Court of Common Pleas of Union County Domestic Relations at No(s): 19-90135

BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*

DISSENTING MEMORANDUM BY BOWES, J.: FILED: MAY 24, 2022

I respectfully dissent. I believe that the trial court erred in failing to

include as income for the purpose calculating monthly child support obligations

the federal COVID-19 stimulus payments Matthew Groff (“Father”) and Ashley

Groff (“Mother”) received pursuant to the Coronavirus Aid, Relief and

Economic Security Act (“CARES Act”), the Consolidated Appropriations Act,

and the American Rescue Plan, hereinafter referred to collectively as the

COVID-19 economic stimulus payments.1

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 As it relates to the remaining issues, I agree with my learned colleagues that the trial court did not err or abuse its discretion in concluding that: (1) the Marital Settlement Agreement (“MSA”) did not bargain away the child’s right to child support; and (2) there was no material change in circumstance (Footnote Continued Next Page) J-S01016-22

The majority succinctly summarized the procedural history of this case

and outlined our standard of review of a child support order. I note that,

during the child support hearing, Mother and Father stipulated that they each

received three COVID-19 economic stimulus payments, in the amounts of

$1,200, $600 and $1,400, for a total of $3,200.2 N.T., 5/11/21, at 13.

Critically, the statutory framework expressly defines the disbursements as

advanced payments of income tax credits that were created by adding and

amending Section 6428 of the Internal Revenue Code.3 See CARES Act of

to justify Father’s request to modify his obligations pursuant to the MSA to satisfy specific ancillary expenses relating to healthcare, childcare, and education.

2 In addition, Mother received three payments totaling $2,500 on behalf of the minor child. As this money was earmarked specifically for the child’s benefit, I would include it in the calculation for the parents’ combined monthly net income under the support guidelines in the same manner that we incorporate a child’s Social Security disability derivative benefits pursuant to Pa.R.C.P. 1910.16–2(b)(2)(i)(A)-(E).

3 For example, the CARES Act provides in pertinent part as follows:

SEC. 2201. 2020 RECOVERY REBATES FOR INDIVIDUALS.

(a) IN GENERAL.—Subchapter B of chapter 65 of subtitle F of the Internal Revenue Code of 1986 is amended by inserting after section 6427 the following new section:

SEC. 6428. 2020 RECOVERY REBATES FOR INDIVIDUALS.

(a) IN GENERAL.—In the case of an eligible individual, there shall be allowed as a credit against the tax imposed by subtitle A for the first taxable year beginning in 2020 an amount equal to the sum of— (Footnote Continued Next Page)

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2020, Pub.L.No 116-136, § 2201 (adding 26 USC 6428), 134 Stat. 281, 335-

37; Consolidated Appropriations Act of 2021, Pub.L.No. 116-260, § 272, 134

Stat. 1182, 1965-66; American Rescue Plan, Pub.L.No. 117-2, § 9601, 135

Stat. 4, 138-40.

Moreover, since the majority recited the relevant portions of guideline

definition of monthly gross income pursuant to Pa.R.C.P. 1910.16-2(a)(8)(ii),

(1) $1,200 ($2,400 in the case of eligible individuals filing a joint return), plus

(2) an amount equal to the product of $500 multiplied by the number of qualifying children (within the meaning of section 24(c)) of the taxpayer.

....

(f) ADVANCE REFUNDS AND CREDITS.—

(1) IN GENERAL.—Subject to paragraph (5), each individual who was an eligible individual for such individual’s first taxable year beginning in 2019 shall be treated as having made a payment against the tax imposed by chapter 1 for such taxable year in an amount equal to the advance refund amount for such taxable year.

(2) ADVANCE REFUND AMOUNT.—For purposes of paragraph (1), the advance refund amount is the amount that would have been allowed as a credit under this section for such taxable year if this section (other than subsection (e) and this subsection) had applied to such taxable year.

CARES Act of 2020, Pub.L.No 116-136, § 2201, 134 Stat. 281, 335-37 (select punctuation and citation to 26 USC 6428 omitted) (emphases added). The relevant portions of the Consolidated Appropriations Act of 2021 and American Rescue Plan employ the same statutory framework.

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concerning “other entitlements to money . . ., including . . . income tax

refunds,” I do not repeat it herein. However, I observe that the statutory

definition, from which the guidelines are derived, specifically identifies income

tax refunds as income for the purpose of determining a support obligation.

Indeed, the Domestic Relations Act, Chapter 43, recognizes various sources

of “income” as follows:

“Income.” Includes compensation for services, including, but not limited to, wages, salaries, bonuses, fees, compensation in kind, commissions and similar items; income derived from business; gains derived from dealings in property; interest; rents; royalties; dividends; annuities; income from life insurance and endowment contracts; all forms of retirement; pensions; income from discharge of indebtedness; distributive share of partnership gross income; income in respect of a decedent; income from an interest in an estate or trust; military retirement benefits; railroad employment retirement benefits; social security benefits; temporary and permanent disability benefits; workers' compensation; unemployment compensation; other entitlements to money or lump sum awards, without regard to source, including lottery winnings; income tax refunds; insurance compensation or settlements; awards or verdicts; and any form of payment due to and collectible by an individual regardless of source.

23 Pa.C.S. § 4302 (emphasis added). This broad definition of income aligns

with our well-ensconced recognition of the twin tenets: “The principal goal in

child support matters is to serve the best interests of the children through the

provision of reasonable expenses” and “the duty to support one’s child is

absolute[.]” Mencer v. Ruch, 928 A.2d 294, 297 (Pa.Super. 2007).

In light of the foregoing statutory framework, it is beyond argument that

the COVID-19 economic stimulus payments, which constitute advances of a

credit toward income tax refunds, fall squarely within the definition of income

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pursuant to the Domestic Relations Act and the concomitant support

guidelines.4 Contrary to the majority, I would not ignore the express statutory

definition of income as including income tax refunds in order to treat the

COVID-19 economic stimulus payments as public assistance, which is not

considered income for the purposes of calculating child support. See Pa.R.C.P.

1910.16-2 (b)(1) (“Neither public assistance nor Supplemental Security

Income (SSI) benefits shall be included as income for determining support”).

4 The majority’s attempt to craft a meaningful distinction between the advanced payment of tax credits in this scenario and tax refund illustrates its misapprehension of the three COVID-19 stimulus packages. See Majority Memorandum at 15 n.9. As noted in footnote three, each of the three economic stimulus statutes authorized the immediate payment of “Advance Refunds and Credits” that refunded payments deemed submitted in the first taxable year beginning in 2019. See CARES Act, Pub.L.No 116-136 § 2201. Stated plainly, the stimulus payments constitute an “advanced refund” on the credit. Id. Thus, notwithstanding the general differences between tax credits and tax refunds that the majority notes, it is indisputable that the stimulus packages authorized the actual payment of an income tax credit in the form of a refund, rather than a typical application of a credit toward the reduction of an individual’s future tax liability. Thus, unlike the hypothetical “store credit” that the majority references in an attempt to bolster its position, the advanced payment of the tax credit under the stimulus packages is, in fact, identical to a tax refund, i.e. “the same as [getting] your money back.” Majority Memorandum at 15 n.9 (quoting City of Philadelphia v. City of Philadelphia Tax Review Bd. ex rel. Keystone Health Plan East, Inc., 132 A.3d 946, 953 (Pa. 2015)). Accordingly, the majority’s endeavor to carve the Covid-19 stimulus payments from the tax-refund construct is unpersuasive. Moreover, regardless of the semantics concerning whether the COVID-19 economic stimulus payments were conveyed to tax payers as a credit or a refund, nothing in the certified record supports the trial court’s conclusion that the payments are akin to public assistance.

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The majority endorses the trial court’s decision to exclude the stimulus

payments based upon three reasons: (1) the payments were temporary in

nature; (2) it would be unduly burdensome to account for payments for 2020

and 2021 and then reduce the income calculations when they payments

ended; and (3) the payments were comparable to a public assistance

payment. While the majority accepts the trial court’s analysis, I cannot.5

First, the ephemeral nature of the COVID-19 economic stimulus

payments is of no consequence. The statutory definition of income for the

purpose of determining support is replete with temporary, lump sum awards.

For example, bonuses, capital gains, insurance benefits, lottery winnings, and

monetary awards and verdicts are all examples of one-time payments that the

5 The majority also relies upon what it sees as the deficient state of the record as a basis to affirm the trial court. See Majority Memorandum at 15 n.9 (“the trial court could not have discerned the complete picture of tax credits or possible income tax refunds for all of the stimulus monies received without having [tax documents]”). However, the fact that neither parent submitted tax documents into evidence is irrelevant. The only factual question pertinent to our determination of this issue concerns whether Mother and Father received the COVID-19 economic stimulus payments. The majority acknowledges that this evidence is in the certified record, “Father and Mother, through their respective counsel, admitted exhibits, including documents indicating that Father received $3,200.00 in COVID stimulus payments in 2020 and 2021, and that Mother received $3,200.00 on her own behalf, and $2,500.00 on behalf of the child.” Id. at 5 (footnote omitted); see also N.T., 5/11/21, at 13. Thus, contrary to the majority’s protestations, the certified record includes the precise information needed to resolve this matter. Despite my colleagues’ apprehensions, there was no need for the trial court to “discern the complete picture of tax credits or possible income tax refunds” in order to properly determine that the stimulus payments constitute income pursuant to the Domestic Relations Act. Id. at 15 n.9.

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statute recognizes as income for the purposes of determining support. See

23 Pa.C.S. § 4302. Hence, this aspect of the court’s rationale is unconvincing.

Moreover, the certified record does not support the finding that it would

place too great a burden on the domestic relations sections to treat the

stimulus payments as income pursuant to 23 Pa.C.S. § 4302. To the contrary,

during the de novo hearing, Lemay Feese, the representative from the Union

County Domestic Relations Section (“Union County DRS”) informed the trial

court that it was not currently including the stimulus payment in the

calculations, but she did not suggest that it would be unduly burdensome to

do so. In actuality, Ms. Feese indicated, “We are not including them as income

at this point.” N.T. De Novo Hearing, 5/11/21, at 23.6 She clarified that the

decision to omit the economic stimulus payments was not dictated by the

Pennsylvania Child Support Enforcement System (“PACSES”), but rather, it

was the internal policy of her office, again, “at this point.” Id. Rather than

complain about a potential disruption to the statewide child support program,

as the trial court suggests, Ms. Feese proffered the following explanation,

“[T]hey were just a one-time payment, not expected to continue, just to

stimulate the economy. So that is the reason we’re not -- they are not

expected to continue, you are not expected to get those funds again.” Id.

Responding to further inquiry from the trial court, Ms. Feese subsequently

6 As Ms. Feese was not under oath during the exchange, I assume she contributed to the discussion as an officer of the court rather than a witness.

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added, “When they started it, . . . nobody believed there would be three

separate payments; that this would continue so long.” Id. at 24. As the

certified record does not sustain the trial court’s reasoning that including the

payments as income would be unduly burdensome on the Union County DRS,

I cannot join my learned colleagues in supporting that position.

Next, notwithstanding the trial court’s decision to equate the stimulus

payments as public assistance, which the majority approves, neither the

majority, the trial court, nor Mother provides citation to any authority for the

underlying proposition that “the economic stimulus payments were designed

as an economic safety net, designed to minimize the impact of the COVID

pandemic [and] to cover lost income and the basic necessities eroded during

the economic shut-down.” Trial Court Order, 6/17/21, at 3. In contrast to

this unsubstantiated pronouncement, the very name “COVID-19 economic

stimulus payments” suggests that the payments were intended to stimulate

the economy by providing additional money for consumer spending rather

than establish a government-sponsored program akin to public assistance.

See Benjamin Curry, Korrena Bailie, What Is Fiscal Stimulus? How Does It

Work?, Feb. 19, 2022, https://www.forbes.com/advisor/personal-

finance/fiscal-stimulus-packages (“Direct Subsidies—aka Stimulus Checks[:]

Perhaps the most effective means of providing fiscal stimulus is via direct

payments to citizens. Give a person money, and chances are they’ll spend it

on something, so the theory goes”). Indeed, “[o]ne of the cornerstones of

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the CARES Act were the much-lauded stimulus checks[.]” Id. While I

recognize that many recipients used the COVID-19 economic stimulus

payments on household expenses, that reality does not transform the stimulus

payments into public assistance.

Finally, I disagree with the majority’s statement that the inclusion of the

additional income would not result in a meaningful change to the child’s basic

support pursuant to the guidelines. See Majority Memorandum, at 14, n.8.

In the February 17, 2021 support guideline calculation that is the genesis of

this appeal, the Union County DRS calculated the parties’ combined net

monthly income to be $10,162.15. See DRS Order, 2/24/21, at 4 (Support

Guideline Calculation). I observe that the inclusion of the $1,200 that Mother

and Father each received in 2020 under the CARES Act, prorated over twelve

months, increased the combined net monthly income by $200.7 See Pa.R.C.P.

1910-16-4 (Calculation of support Obligation, Formula). Specifically, the

combined $2,400 of income increases the combined net monthly from

$10,162.15 to $10,362.15.

To maintain consistency with the relevant domestic relations calculation,

I considered only the combined $2,400 that Mother and Father received in

2020 under the CARES Act. The additional $200 per month increased the

7 My calculation is purposefully conservative. The increase is greater when the stimulus payment is pro-rated over six months. See Rule 1910.16-2(a) (“Monthly gross income is ordinarily based on at least a six-month average of a party’s income.”).

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basic child support by $10 from $1,450 per month to $1,460. See Pa.R.C.P.

1910-16-3 (Basic Child Support Schedule). Of course, adding the aggregate

$4,000 stimulus payments that Mother and Father received during 2021

pursuant to the latter two stimulus packages would increase this amount

substantially, as would the inclusion of the $2,500 sum that Mother received

on behalf of the minor child pursuant to all three packages. As I stated in

note two of this dissent, I would treat the $2,500 child benefit as income in

the same manner that the guidelines treat child social security derivative

benefits as income under Pa.R.C.P. 1910.16–2(b)(2)(i)(A)-(E), i.e. the

amount is included in the calculation of the combined net monthly income in

order to determine the correlating amount of basic support. Thus, the effect

of the additional income is substantial.8

For all of the foregoing reasons, and recognizing that the support

guidelines are designed to maximize the total income available to the child, I

would find that the trial court erred in failing to include the COVID-19

economic stimulus payments in its calculation of the parties’ child support

obligations. On their face, the economic stimulus payments were advances of

a credit toward an individual’s income tax refund, which constitutes income

8 Simply for the purpose of demonstration, and not for providing any guidance to the Union County DRS, I further observe that including all of the COVID-19 stimulus payments and child benefits in the calculation, again prorated over twelve months, would increase the combined monthly net income by $741.67, from $10,162.15 to $10,903.82, which in turn, increases the guideline amount of basic child support due to one child to $1,495.

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pursuant to the express terms of Domestic Relations Act and support

guidelines. Hence, I would reverse the child support order and remand for

recalculation of Mother’s child support obligation in light of the additional

income the parties received in 2020 and 2021 from the economic stimulus

payments.

Accordingly, I respectfully dissent.

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