J-A25002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.I.G. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : J.K.G. : No. 2110 MDA 2019 v. : : : K.I.G. : : Appellant :
Appeal from the Order Entered December 3, 2019 In the Court of Common Pleas of Berks County Domestic Relations at No(s): 2010-67321, 2010-67321R, PACSES 258116945, PACSES 534111202
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 18, 2021
K.I.G. (“Mother”) appeals from the December 3, 2019 child support
order, which, inter alia, rendered unenforceable the provision of the parties’
May 18, 2012 stipulated agreement that provided for reinstatement of the
April 26, 2012 support order if J.K.G. (“Father”) sought to modify custody,
and established Mother’s support obligation based upon earning capacity
rather than actual earnings. After thorough review, we affirm in part, vacate
in part, and remand. J-A25002-20
The parties are the parents of eight children, two of whom reached the
age of majority on May 25, 2019. Beginning in the early 2000’s, Mother,
Father and the children produced a reality television program. After Mother
and Father divorced, Mother and the children continued the television show.
Compensation for their services was paid to a Subchapter “S” corporation
owned by Mother and the children, which paid the family’s living expenses and
funded the children’s educational trusts.
On April 26, 2012, the domestic relations court entered an order that
set forth Father’s support obligation. On May 18, 2012, the parties entered a
custody stipulation (“Stipulation”), which provided in pertinent part that
Mother relieved Father of his support obligation provided he did not seek to
modify custody. In the event that Father sought a custody modification, the
Stipulation provided that the April 26, 2012 support order would be reinstated,
effective May 9, 2012, and Father also would be responsible for paying the
$125,000 balance of arrears accrued prior to April 26, 2012, within six months
of the reinstatement. See Stipulation, 5/18/12, at ¶2. The Stipulation was
incorporated into the court’s May 22, 2012 custody order (“Agreed Order”).
Thereafter, pursuant to the Stipulation, Father paid no child support and
Mother retained sole legal and physical custody of the children. On October
20, 2017, Father filed a petition to modify custody, and he was awarded
shared legal custody of the minor children on December 28, 2017. On January
10, 2018, Mother filed a complaint seeking reinstatement and enforcement of
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the April 26, 2012 support order, pursuant to the terms of the Stipulation and
the Agreed Order. She also sought child support from Father for the support
of all eight children, who were living with her at the time.
On February 21, 2018, Mother and Father entered a consent order in
which Mother “waived her claim for child support after 1/10/2018 without
prejudice to her right to file a complaint in the future.” Consent Order,
2/21/18. That same day, Father was awarded primary physical custody of
one of the children, H.J.G., and filed a complaint seeking child support from
Mother for her support. On December 20, 2018, Father obtained sole legal
and primary physical custody of another child, C.T.G., and thereafter on
January 9, 2019, Father filed another complaint seeking child support from
Mother for C.T.G.’s support. On May 22, 2019, Mother filed a complaint
seeking child support from Father for the four minor children remaining in
Mother’s custody. The various complaints were consolidated by order dated
May 23, 2019.
A hearing on the outstanding petitions was held before the support
hearing officer Mark J. Merolla, Esquire (the “Hearing Officer”) on May 28,
2019, and he issued his findings of fact and law on July 3, 2019. The Hearing
Officer found the Stipulation, which provided for the reinstatement of the April
26, 2012 support order effective May 9, 2012, and arrears totaling $125,000,
unenforceable. He also found Mother’s claim for child support for all eight
children commencing January 10, 2018, to be waived. Finally, the Hearing
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Officer assessed Mother’s earning capacity at $175,541.50, and recommended
that Mother be ordered to pay monthly support to Father of varying amounts
for various periods commencing February 21, 2018.
Mother timely filed exceptions. A hearing on Mother’s exceptions, as
well as certain custody-related matters not at issue in this appeal, was held
before the Honorable Timothy Rowley on November 1, 2019. The court issued
a Decision and Order on December 2, 2019, which was docketed on December
3, 2019. The court largely adopted the Hearing Officer’s findings and
recommendations. Mother timely appealed and complied with Pa.R.A.P.
1925(b). On January 6, 2020, the trial court issued a statement in lieu of a
Rule 1925(a) opinion, directing this Court to its December 3, 2019 Decision
and Order, for the detailed reasons in support of the order.
Mother presents four issues for our review:
1. Did the trial court err or abuse its discretion in failing to reinstate the prior [s]upport [o]rder, dated April 26, 2012?
2. Did the trial court err or abuse its discretion in determining that Appellant waived her right to child support for the period from January 10, 2018 through May 22, 2019?
3. Did the trial court err or abuse its discretion in finding that Appellant has an earning capacity of $179,541.50?
4. Did the trial court err or abuse its discretion in finding that Appellant failed to produce documentation to support her lack of income in 2019, and that historical income information prior to 2017 was necessary to determine her current income/earning capacity?
Mother’s brief at 17.
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Our standard of review is as follows:
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.
Brickus v. Dent, 5 A.3d 1281, 1284 (Pa.Super. 2010) (citations omitted).
Furthermore, this Court
must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, this Court must defer to the trial judge who presided over the proceedings and thus viewed the witnesses first hand.
When the trial court sits as fact finder, the weight to be assigned the testimony of the witnesses is within its exclusive province, as are credibility determinations, and the court is free to choose to believe all, part, or none of the evidence presented. This Court is not free to usurp the trial court's duty as the finder of fact.
Mackay v. Mackay, 984 A.2d 529, 533 (Pa.Super. 2009) (internal citations and quotation marks omitted).
M.E.W. v. W.L.W., 240 A.3d 626, 634 (Pa.Super. 2020).
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The following principles inform our review. “[P]arents have no power to
‘bargain away the rights of their children,’ and . . . if an agreement between
parents for child support provides ‘less than required or less than can be
given,’ courts may ignore the agreement and require a satisfactory level of
support. Huss v. Weaver, 134 A.3d 449, 454 (Pa.Super. 2016) (quoting
Knorr v. Knorr, 588 A.2d 503, 505 (Pa. 1991)). Phrased differently, “an
agreement in which one parent releases the other from the duty of support
will be enforced so long as it is fair and reasonable, was made without fraud
or coercion, and does not prejudice the welfare of the children involved.”
Roberts v. Furst, 561 A.2d 802, 803 (Pa.Super.1989).
Furthermore, “[t]he court making an order of support shall at all times
maintain jurisdiction of the matter for the purpose of enforcement of the order
and for the purpose of increasing, decreasing, modifying or rescinding the
order.” 23 Pa.C.S. § 4352(a). Thus, the trial court throughout retains
continuing jurisdiction to amend even the parties’ agreements for support in
accordance with the children’s changing needs for support. See 23 Pa.C.S. §
4352(a) (providing that “[a]n award of support, once in effect, may be
modified via petition at any time, provided that the petitioning party
demonstrates a material and substantial change in their circumstances
warranting a modification”).
Mother contends first that the trial court erred in refusing to enforce the
Stipulation and reinstate the April 26, 2012 support order. In the Stipulation,
Mother agreed to release Father from his support obligation as determined on
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April 26, 2012, provided that Father did not seek to modify legal or primary
physical custody of any of the children. In the event that Father violated that
condition, the previous support order would be reinstated retroactively to May
9, 2012.1 Consequently, Father would be required to pay within ninety days
all accrued child support from May 9, 2012 until the date he filed his petition
to modify custody, which was October 20, 2017. In addition, Father would
have six months to pay the $125,000 in arrears that had accrued prior to April
27, 2012. Mother claims the Stipulation was a valid, binding, and
unambiguous contract that should have been enforced as Father violated the
parties’ agreement when he sought and obtained custody of two of the
children.
____________________________________________
1 Paragraph 2 of the Stipulation provided:
In the event Father files a Petition with the Court to modify this Amended Stipulation for Entry of Agreed Custody Order and seeks reinstatement of Paragraph 9 of the November 30, 2010 Stipulation for Entry of Agreed Custody Order, or seeks a change in legal custody, or seeks joint or primary physical custody, the Support Order dated April 26, 2012[,] shall be reinstated effective May 9, 2012. Any and all arrears that would have been generated on the April 26, 2012 support Order between April 27, 2012 and the date Father files his Petition to Modify Custody shall be due and owing within ninety (90) days of the date of the filing of the Petition to Modify Custody. In addition, the arrears balance of $125,000 that was due as of April 26, 2012, shall be reinstated and Father shall be obligated to pay Mother the sum of $125,000 within six months of filing of any Petition to Modify Custody.
Stipulation, 5/18/12, at ¶2.
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Although the trial court purported to analyze the enforceability of the
Stipulation under the three-prong test in Roberts, supra, and applied more
recently in Kraisinger v. Kraisinger, 928 A.2d 333 (Pa.Super. 2007), Mother
alleges that the court only examined the third prong, the prejudice prong, and
then focused solely on the prejudice to the two children in Father’s custody if
he was required to pay arrears. Mother claims that the court ignored the
prejudice and harm to the other children in her custody “who will not only
receive no financial support from Father, but [who] will be placed in dire
economic circumstances when Mother is forced to pay monthly child support
to Father based upon a theoretical earning capacity and no actual income.”
Mother’s brief at 25.
Mother argues in the alternative that, even if the Stipulation is found to
be void and unenforceable based upon unreasonableness or potential
prejudice, the April 26, 2012 support order was never terminated and remains
in effect. Id. at 27. According to Mother, Father has been accruing unpaid
arrears of $1,450 per month under that order for current support, and $40.00
per month for arrears since April 26, 2012, which are due and owing.
Father does not allege that the Stipulation was unreasonable or
coercive. Rather, he asserts that the trial court properly found the Stipulation
unenforceable as to child support because enforcement of its penalty provision
would unfairly prejudice the minor children in Father’s sole physical custody.
Father maintains, as the trial court found, that his gross income is not large
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enough to support himself and the two children in his custody, as well as pay
arrears that would have any meaningful impact on the amount Father owed
Mother. Father’s brief at 15. Furthermore, Father disputes Mother’s
representation that the trial court did not consider whether enforcement would
have any prejudicial effect on the children in Mother’s care from 2012 until
January 10, 2018. According to Father, the court concluded that the fact that
Mother did not file for support until 2018 was evidence that the children
suffered no prejudice in the past. Id. at 16. Moreover, Father argues that
Mother’s withdrawal of her claim for support filed in January 2018, should be
viewed as a tacit confirmation that the children were well provided for while
in her care. Id.
Father contends further that Mother’s enforcement of the support
provisions in the Stipulation was intended to penalize him for seeking joint
legal custody. He distinguishes the situation herein from that in Huss, supra,
where an agreement providing for a $10,000 charge should the mother seek
modification of agreed-upon child support was enforced because the parties
acknowledged therein both their respective earning capacities and the
reasonableness and fairness of the agreement. He contends that the
Stipulation herein does not contain similar language or acknowledgments, and
is punitive.
Father relies upon this Court’s decision in Kraisinger, supra, in which
we struck down a provision in a child support agreement requiring the mother
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to pay the father’s legal fees if she challenged the amount of child support set
forth in their agreement. Although the parties’ agreement specifically
provided that the attorney fees provision was included to “discourage frivolous
filings,” id. at 337, we refused to “tolerate a provision which penalizes a parent
for pursuing her children’s rights.” Id. at 345.
We find the Stipulation herein distinguishable from the agreements in
Kraisinger and Huss. It was not only a support agreement; it was also a
custody agreement that released Father from his support obligation provided
he did not seek to modify Mother’s custody of the children. As we held in
Huss, supra, we may ignore agreements as to child support to the extent
that they result in inadequate support for the children. However, such an
agreement “will be enforced so long as it is fair and reasonable, was made
without fraud or coercion, and does not prejudice the welfare of the children
involved.” Roberts, supra at 803.
Herein, the trial court found that Father’s income was insufficient to
support himself and two children, and that enforcement of the Stipulation
would be prejudicial to the two children in his custody. Furthermore, the court
found no evidence that the children in Mother’s care lacked the necessary
support from 2012 until May 2019, despite Mother’s lack of earnings in 2019.
Thus, it would appear that although Father was relieved of his duty of support
for more than six years, the children did not suffer. To require Father to pay
five years of accrued child support, and an additional $125,000 in arrears,
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when he lacks the wherewithal to support himself and the two children in his
custody, would indeed prejudice the latter two children. Hence, we find no
abuse of discretion on the part of the trial court in refusing to enforce the
Stipulation.
Alternatively, Mother claims that the support order of April 26, 2012
remained in full force and effect over the years. She contends that “[t]he
April 26, 2012 Support Order was only terminated based on an agreement
between the parties and, if said [Stipulation] is invalid, the termination is
consequently also invalid.” Mother’s brief at 27. She maintains “Father has
been accruing unpaid arrears under the April 26, 2012 Order, which arrears
are due and owing.” Id. at 28. However, Mother cites no authority
authorizing the trial court to resurrect and enforce a support order that was
superseded by the parties’ Stipulation. Moreover, the Stipulation was deemed
unenforceable, not invalid. This claim merits no relief.
Mother contends next that the trial court erred in finding that her claim
for child support from January 10, 2018 through May 22, 2019 was waived.
The record reveals that Mother and Father entered a consent order on
February 21, 2018 (the “Consent Order”), in which Mother “waived her claim
for child support after 1/10/2018 without prejudice to her right to file a
complaint in the future.” Consent Order, 2/21/18, at 1. Mother argues that
immediately after she signed the Consent Order, “Father filed in the custody
matter to terminate Mother’s right to continue filming with the children,
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effectively rendering Mother unemployed and leaving the children with no
income and no child support.” Mother’s brief at 35. She urges us to apply
the three-pronged test enunciated in Roberts to render the Consent Order
unenforceable because it resulted in prejudice to the children.
Contrary to Mother’s representation, the trial court did not find that the
Consent Order constituted a waiver of support for that period. Rather, the
court found it merely operated as a withdrawal of Mother’s claim for child
support for January 10, 2018 through May 22, 2019, without prejudice to
Mother’s right to file a new complaint for child support for that period.2
Although the Consent Order contained the term “waived,” we agree with the
trial court that there was no prejudice as it merely withdrew the January 10,
2018 support claim and was not an impediment to Mother filing a new
complaint seeking support for the children for that period. Again, we find no
error or abuse of discretion.3
We turn now to Mother’s third and fourth issues alleging that the trial
court erred and abused its discretion in disregarding substantial evidence of
her actual earnings that should have been used to calculate her support
2 Mother did not file a new complaint for child support commencing January 10, 2018, although she could have. Rather, she filed a new complaint for child support on May 23, 2019.
3 The trial court also found waiver because Mother supplied no documentation to facilitate the calculation of support for the time period from January 10, 2018 through May 22, 2019. In our view, the record does not support the trial court’s alternative basis for finding waiver for the reasons that follow.
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obligation commencing February 21, 2018. Mother faults the court first for
imputing income to her based on earning capacity, and second, for doing so
incorrectly. Specifically, Mother challenges the trial court’s findings that (1)
she failed to produce sufficient documentation of her lack of income in 2019;
(2) historical income information prior to 2017 was necessary to determine
her current income/earning capacity; and (3) her earning capacity is
$179,541.50.
Support is traditionally awarded based upon the parties’ monthly net
income and it is usually calculated using at least a six-month average of
earnings. See Pa.R.C.P. 1910.16-2. The Hearing Officer found
documentation of Mother’s actual monthly net earnings in 2018 and 2019 to
be lacking. He faulted Mother for obtaining an extension for the filing of her
2018 federal income tax return, as it raised a question in his mind whether
the return was “simply not filed in order to limit the evidence available as of
the date of the hearing.” Findings of Fact, Conclusions of Law, and
Recommendations of the Hearing Officer, 7/3/19, at 4. At the same time,
however, the Hearing Officer acknowledged that there was evidence
introduced of Mother’s 2017 and 2018 actual earnings.4 Although Mother
4 The Hearing Officer made a point of noting that Father, not Mother, introduced Mother’s 2017 Federal Income Tax Return. We do not believe that this fact indicates any intention on Mother’s part to withhold or conceal information. The record reveals that Father testified first and offered Mother’s return, as well as the corporation’s 2018 corporate tax return, both of which were provided to him in discovery pursuant to court order.
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testified that she had $0 in earnings for the first five months of 2019, and
introduced a letter from the network confirming that there was no filming in
2019, the Hearing Officer found that Mother did not offer sufficient
documentation to permit the calculation of her actual earnings in 2019. Thus,
he assigned to Mother an earning capacity for 2019, which he calculated “[a]s
the average of her income from 2017 and 2018,” ostensibly because there
was no evidence of Mother’s earnings in the years prior to 2017. Id. The trial
court adopted the Hearing Officer’s findings and recommendations.
Mother claims that the trial court erred in assigning her an earning
capacity of almost $180,000 in 2019 in the face of “clear, unambiguous and
uncontradicted documentation” of her actual earnings. Mother’s brief at 38.
Furthermore, she contends it was inequitable for the court to assign to her an
earning capacity equal to the income she earned while she and the children
were filming and producing television shows. Id. at 36. An earning capacity
of $179,541.40 was not realistic according to Mother, when she and the
children could not film and were prohibited from obtaining other acting work
under the terms of the contract. Id. at 37.
We find there was documentary evidence of Mother’s actual monthly net
earnings in 2017 and 2018 and early 2019. Mother’s 2017 federal income tax
return, as well as the 2018 tax return for her Subchapter “S” corporation were
introduced into evidence. Additionally, Mother’s accountant supplied
documents confirming the payments made to Mother through the corporation
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in 2018. Mother also introduced documentation of the expenses related to
the health insurance she maintains for all of the children. These documents
were admitted without objection. In fact, Mother’s actual earnings in 2018
were ascertained by the Hearing Officer from the 2018 corporate tax return
and the accountant’s letter.
With regard to 2019, Mother offered the following. She was under an
exclusive contract with one network. The contract was identified as Exhibit F-
7, used by Father for purposes of cross-examination, and provided to the
Hearing Officer for in camera review. See N.T. Support Hearing, 5/28/19, at
44. Mother testified that she had no income to date in 2019, and offered
documentation from the television network confirming that they were not
filming and, therefore, not paying Mother.
Mother also offered the following additional explanation for her lack of
earnings in 2019. In 2018, Father sought a court order to halt filming of the
show. Mother filed an expedited petition for emergency relief seeking an order
that filming could resume. Although she ultimately prevailed, and her
attorney advised the network that production could resume, the media
company had not yet approached Mother’s attorney about production. Id. at
48. Mother testified that it was unclear whether filming of the show involving
the children would ever resume. Id. at 49. When she was asked whether she
was entitled to compensation when old shows were aired, she explained that
there are no royalties paid for reality television shows and that she does not
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receive extra compensation for personal appearances per the contract. Id. at
50.
Mother also recounted how she appeared in a new show with the
network focused on her social life post-divorce. She explained that she did
not receive income for that show. Rather, the new show was a means to offset
the compensation that had already been paid, but not earned, for episodes of
the long-running show with the children that were not filmed as a result of
Father’s litigation. It was her testimony that she still “owed” the network
$40,000. As of the date of the hearing, Mother maintained that she had $0
in income for the first five months of 2019, was not currently earning any
income from the network, and had no assurances that filming would ever
resume on either show.5
Despite the foregoing, the trial court concluded that Mother supplied no
documentation from which her actual earnings could be determined for
purposes of establishing her support obligation in 2019. The trial court noted
that although Mother testified as to her income for the relevant period, “the
Support Hearing Officer frequently determined her to lack credibility, which is
further compounded by an often-noted lack of supporting documentation.”
Trial Court Order and Decision, 12/3/19, at 9. The court thus deferred to “the
5 Mother testified that she was supporting the children during 2019 by borrowing from the corporation and the children’s trusts. The Hearing Officer did not credit Mother’s account because she did not submit any documentation evidencing the loans or payments made on the loans.
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Hearing Officer’s determination that Mother’s testimony regarding her income
lacked credibility” and supporting documentation. Id. at 10.
After reviewing the evidence of record, we find inadequate support for
the trial court’s finding that a lack of documentation hindered an evaluation of
Mother’s actual earnings in 2018 and 2019. There was documentary evidence
of Mother’s actual earnings in 2017, 2018, and written confirmation from the
network that Mother had not received any compensation in 2019 as of the
date of the May hearing. It is unclear what additional documentation would
have been available or deemed satisfactory to confirm Mother’s $0 in actual
earnings at that juncture. Mother also provided testimony that she had $0 in
income for the first five months of 2019 due to a change in circumstances.
The Hearing Officer did not make a specific finding that her testimony in this
regard was not credible.
Furthermore, the trial court abused its discretion when it concluded that
the Hearing Officer correctly determined Mother’s imputed income in
accordance with Pa.R.C.P. 1910.16-2(d)(4)(providing that if the trier of fact
determines that a party to a support action has willfully failed to obtain or
maintain appropriate employment, an income equal to the party’s earning
capacity may be imputed). See Trial Court Order and Decision, 12/3/19, at
10. The court did not articulate reasons why it was necessary to resort to an
income capacity determination pursuant to Pa.R.C.P. 1910.16-2(d)(4).
Furthermore, by assigning to Mother an earning capacity in 2019 equal to the
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average of her earnings in 2017 and 2018, the trial court did not consider all
relevant factors such as Mother’s “[a]ge, education, training, health, work
experience, earnings history and child care responsibilities.” Pa.R.C.P.
1910.16-2(d)(4).6
Mother’s employment situation is far from typical. Her continued ability
to support her children on earnings derived from a reality television show is
not only dependent upon the vagaries of ratings and the whims of television
executives, but Father’s cooperation as well. Moreover, although the show
involving the children has aired for fifteen years, its continued viability may
be short-lived. Two of the children have reached the age of majority, and the
remainder are on the cusp of that milestone. It remains to be seen whether
Mother can successfully parlay her notoriety from that television show into
another lucrative entertainment vehicle. As of the support hearing, it was
unclear whether Mother’s foray into a show that focused primarily on her life,
rather than the lives of the children, would be successful. In any event, there
was evidence adduced that, commencing in 2019, Mother may not have the
same ability going forward to support the six minor children with earnings
from reality television.7
6 At the January 16, 2020 hearing on, inter alia, Mother’s exceptions, counsel for Mother represented that the contracts were not being renewed by the network. See N.T. Hearing, 1/16/20, at 3.
7There is evidence in the record that Mother is a registered nurse, although she has not worked in that field for the last fifteen years.
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For the foregoing reasons, we vacate that portion of the trial court’s
order adopting the Hearing Officer’s recommendation that Mother’s child
support obligation commencing January 2019 be based on an earning capacity
derived by averaging Mother’s 2017 and 2018 income. We remand for the
calculation of Mother’s actual net monthly earnings for 2019. In the event
that Mother’s 2019 actual net monthly earnings are greatly reduced or $0, as
Mother maintains, the trial court should determine whether it is appropriate
to assign an earning capacity to Mother, and if so, assess Mother’s earning
capacity based on the factors outlined in Pa.R.C.P. 1910.16-2(d)(4). In all
other respects, we affirm.
Order affirmed in part, vacated in part. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 03/18/2021
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