J-A18013-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.M.W. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : J.S.W. : : Appellant : No. 23 WDA 2020
Appeal from the Order Entered December 18, 2019 In the Court of Common Pleas of Allegheny County Family Court at No(s): F-06-00884-001
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 07, 2020
J.S.W. (Father) appeals from the December 18, 2019 order that granted
and/or dismissed the exceptions filed by Father and by M.M.W. (Mother) to
the hearing officer’s recommendations relating to Mother’s petition to modify
the amount of child support Father pays to Mother for the support of the
parties’ sixteen-year-old son, M.W. (Child).1 After review, we affirm.
Father’s brief delineates the issues he raises in this appeal, wherein he
states:
1. The trial court erred as a matter of law and/or abused its discretion in granting modification and in adopting the hearing officer’s conclusory findings that the child support provision in the parties’ Marital Property Settlement Agreement is not fair and ____________________________________________
1 As noted by the trial court, this matter concerns a high-income child support order. Essentially, Father contends that the trial court erred in setting aside the provision in the parties’ marital settlement agreement providing for child support and setting an amount that allows Child to have a similar standard of living when in the custody of either Mother or Father. J-A18013-20
reasonable, where neither the hearing officer nor the trial court performed any scrutiny of the [C]hild’s reasonable needs.
2. The trial court erred as a matter of law and/or abused its discretion in issuance of a high-income support order where neither the hearing officer nor the trial court scrutinized Mother’s budget and determined the [C]hild’s reasonable needs.
3. The trial court erred as a matter of law and/or abused its discretion in failing to properly apply the support guidelines at Pa.R.C.P. 1910.16-3.1 and Hanrahan v. Bakker, 186 A.3d 958 (Pa. 2018)[,] as required in high-income cases.
4. The trial court erred as a matter of law and/or abused its discretion in its finding of Mother’s income and her earning capacity for child support purposes.
5. The trial court erred as a matter of law and/or abused its discretion in awarding Mother counsel fees pursuant to 23 Pa.C.S.[] § 4351 in a proceeding to modify an existing support obligation.
Father’s brief at 15-16.
When addressing such issues, we are guided by the following:
[T]his 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.
Samii v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004) (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
-2- J-A18013-20
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.
Hogrelius v. Martin, 950 A.2d 345, 348 (Pa. Super. 2008). “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.” Stokes v. Gary Barbera Enterprises, Inc., 783 A.2d 296, 297 (Pa. Super. 2001), appeal denied, 568 Pa. 723, 797 A.2d 915 (Pa. 2002). “[T]his Court is not free to usurp the trial court’s duty as the finder of fact.” Isralsky v. Isralsky, 824 A.2d 1178, 1190 (Pa. Super. 2003) (quoting Nemoto v. Nemoto, 423 Pa. Super. 269, 620 A.2d 1216, 1219 (Pa. Super. 1993)).
Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009).
We have reviewed the certified record, the briefs of the parties, the
applicable law, and the thorough opinion authored by the Honorable Eleanor
L. Bush of the Court of Common Pleas of Allegheny County, dated March 11,
2020. We conclude that Judge Bush’s well-reasoned opinion correctly
disposes of the issues that have been raised by Father.2 Accordingly, we adopt
Judge Bush’s opinion as our own and affirm the support order on that basis.
Order affirmed.
____________________________________________
2 Father’s issues are all addressed by the trial court, but are discussed in a different order than that set forth by Father in his brief.
-3- J-A18013-20
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/7/2020
-4- Circulated 09/10/2020 08:37 AM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
M.M.W., Plaintiff, FD 06-000884-001
v. 23 WDA 2020
LW., OPINION
Defendant.
By: Copies to: The Honorable Eleanor L. Bush Perinsylvania Superior Court Allegheny County Court of Common Pleas Nicholas V. Corsetti, Esq. 440 Ross Street, Suite 5045 Deputy Prothonotary Pittsburgh, PA 15219 310 Grant St, Suite 600 Pittsburgh, PA 15219
Counsel for Plaintiff,
a w - Daniel Glasser, Esquire 437 Grant Street, Suite 501 Pittsburgh, PA 15219 LL
Counsel for Defendant,
Robb Bunde, Esquire 223 Fourth Avenu6, Suite 500 Benedum-Trees Building Pittsburgh, PA 15222 IN THE COURT OF COMMON PLEAS. OF ALLEGHENY COUNTY, PENNSYLVANIA FAMILY DIVISION
M.M.W.,
Plaintiff, FD 06-000884-001
J.W., OPINION
OPINION
Bush, J. March 11, 2020
J.W. ("Father") is a multi -millionaire who exercises shared physical custody
with M.M.W. ("Mother") of their 16 year-old son M.W. ("Child"). In this appeal
Father challenges the Court's decision to set aside the child support provision of
the parties' marriage settlement agreement and modify Father's child support
obligation to afford Child the opportunity to experience a similar standard of living
when in the custody of each parent. The Court suggests that the evidence and
guiding case law support its decision.
2 1. Factual and Procedural Background
Father and Mother (collectively "Parents") married on July 5, 2003 and
separated on June 15, 2006. In May 2008 Parents executed a Marital Property
Settlement Agreement ("the Agreement"), and their divorce became final on June
11, 2008, Already wealthy at the time of the Agreement, Father agreed to pay
Mother a lump sum of $1.5 million and an additional $162,000 over a period of
three years as equitable distribution.' The Agreement also addressed child custody
and support, limiting Father's child support obligation to no more than $2,500 per
month.2
Father's wealth has increased fold since 2008. Father is the CEO of
his own company.' His business consists of buying, developing, and selling
multimillion -dollar technology companies. Recent business successes include a
sale that earned him $80 million in 2016. Since 2018, Father has earned
approximately $1.46 million per year.' Father has investment accounts that held
$53 million at the end of 2017.5 Father also produced one personal checking
account that held roughly $217,000 at the time of the 2018 Master's hearing.
' Exhibit 2, Sections IX(C). 2 Exhibit 2, X, XIII. 3 Tr. 237. 4 This figure is not disputed by either party. 5 Tr. 264-265.
3 Father maintains a standard of living consistent with his wealth. His
primary residence is a $5.8 million home with a large saltwater pool and sports
courts that Child enjoys when he spends time with Father.6 Father owns two
vacation homes and a Nautique boat that he purchased for $90,000. Father takes
Child on expensive vacations which typically include first-class plane tickets and a
week or more of international travel.'
Since 2008 Mother has primarily been an at-home parent. Mother earns
approximately $39,465 from her part-time work managing rental properties that
she purchased following the parties' divorce.8 Mother worked for her father's
company in the past, and she currently does bookkeeping work for him. She
resides in a two -bedroom home of approximately 1,400 square feet that needs
repairs to the windows, roof, and siding.
The parties have continuously engaged each other in litigation since their
divorce 12 years ago. Father filed custody actions in 2010, 2014, 2015, 2016, and
2017.9 The parties have also litigated matters associated with a real estate -related
LLC they formed at the time of their divorce.' Following Mother's present action
for modification of child support, Father attempted, unsuccessfully, to have
6 Tr. 247-248. 7 Tr. 280. 8 Tr. 11-16. 9 Exhibit 0, 14 Tr. 29-30, 83, 87.
4 Mother's counsel disqualified. The years of litigation have strained Mother's
financial resources.
On May 1, 2017, Mother filed for modification of child support. This Court
denied Mother's Motion for Modification on June 19, 2017, and Mother appealed.
Recognizing its initial denial as premature, the Court requested that the Superior
Court remand the matter for a hearing. The Superior Court accordingly remanded
the matter on October 23, 2017. The Court then referred the matter to one of the
Court's permanent Masters, directing that the Master determine whether the child
support provision in the Agreement was fair and reasonable and did not prejudice
the welfare of the Child." The Court also directed the Master to address Mother's
request for modification of support.
Master Tricia Sorg conducted a two-day hearing on September 17 and 18 of
2018. Witnesses at the hearing included Mother, Father, Mother's counsel,
Mother's accounting expert, Father's accounting expert, and Father's vocational
expert. The Master admitted a total of 25 exhibits. The evidence presented at the
hearing demonstrated a considerable gap between Mother's and Father's standards
of living and their vastly disparate incomes.
As set forth in Roberts v. Furst, 561 A.2d 802 (Pa.Super. 1989). 5 Master Sorg issued her Hearing Summary and Recommendations on March
27, 2019. The Master recommended that the Court set aside the Agreement's child
support provision as neither fair nor reasonable under the circumstances.
Consequently, the Master applied the high -income child support guidelines to her
income calculations, resulting in the recommendation that Mother was entitled to
modification of child support. The Master accepted the guidelines calculation as
establishing a fair and reasonable child support award; she recommended that
support be set at the guideline amounts of $38,083 per month for the year 2017
(reflecting Father's unusually high income for that year) and $9,857 per month for
2018 onward. The Master also recommended awarding Mother 50% of her counsel
fees.
Both parties timely filed exceptions to the Master's Recommendations.
Father challenged most aspects of the Master's recommendation. Mother agreed
with the Master's recommendation to set aside the Agreement's child support
provision, but challenged the Master's income calculation and sought a higher
counsel fee award. The Court heard argument on the parties' exceptions on June 4,
2019 and entered its Order on Exceptions on December 18, 2019.
The Court accepted the Master's recommendation to set aside the
Agreement's child support provision as well as her recommendation regarding
counsel fees. The Court departed from the Master's findings regarding Mother's 6 income. The Court then used the revised figures to re -calculate the high income
support guidelines, resulting in a monthly child support obligation of $8,539.74
Finally, as required by Hanrahan v. Bakker, 646 Pa. 678 (2018), the Court
examined the parties' expense statements and Mother's proposed budget to
determine whether to deviate from the guidelines amounts. The Court determined
the Child's reasonable needs to be $19,618 per month, which resulted in a
downward deviation for 2017 and an upward deviation for 2018 onward.
Accordingly, the Court ordered that Father pay $19,521.87 per month for 2017 and
$19,225.64 per month for 2018 onward.
II. Issues on Appeal Father filed a timely appeal, in which he raises five issues, paraphrased as
follows:
1. The Court erred by refusing to enforce the child support provision of
the Agreement.
2. The Court failed to properly apply the guidelines and Hanrahan v.
Bakker as required in high income cases.
3. The Court erred by failing to scrutinize Mother's budget and
determine the Child's reasonable needs.
4. The Court erred by awarding Mother counsel fees.
5. The Court erred in its calculation of Mother's income.
7 III. Validity of Marriage Settlement Agreement
Father seeks to enforce the child support provision of the Agreement which
purports to limit his support obligation to a maximum of $2,500 per month. The
evidence and the applicable law support the Court's decision to set aside this
provision.
Generally, courts enforce marriage settlement agreements. Parties to a divorce
action may bargain between themselves and structure a marriage settlement
agreement as best serves their interests.12
In contrast, courts treat child support provisions differently. Parents cannot
bargain away a child's right to support.' When interpreting parents' agreements,
courts must protect the child's best interest." Courts will enforce agreements
regarding child support if they are fair and reasonable.15 Where the amount agreed
upon differs significantly from the guidelines range, courts may presume that the
agreement does not provide fair and just support for the child.'
Here, the Court determined that the child support provision in the Parents'
agreement was neither fair nor reasonable. The credible evidence at the hearing
12 Brown v. Hall, 435 A.2d 859 (Pa. 1981). 13 Knorr v. Knorr, 588 A.2d 503 (Pa. 1991). 14 Id. at 505. 15 561 A.2d 802. 16 Kost v. Kost, 757 A.2d 952 (Pa.Super. 2000). 8 established that Child enjoys a far different lifestyle with Father than he does with
Mother. Father's primary residence is a $5.8 million home. Father also owns a $4.9
million vacation home and a boat. Father's residence includes extravagant
amenities such as a theater, home gym, a pool with a pool house, and sports courts
that Child can enjoy while with Father. Father also takes Child on expensive
vacations, which typically include first-class plane tickets and a week or more of
international travel." Mother's home does not offer any of the amenities that
Father enjoys. Mother's current child support and income do not allow her to come
anywhere to close to providing a lifestyle for Child similar to that he experiences
when with Father.
Pennsylvania appellate courts have invalidated support provisions similar to the
one at issue here. For example, in Kraisinger v. Kraisinger, 928 A.2d 333
(Pa.Super. 2007), the parties' marriage settlement agreement provided that
husband pay $3,000 per month for four years to support his wife and their four
children. After the first four years, the payment declined to $500 per month per
child, and wife waived the right to seek additional child support. The wife filed for
additional child support three years after signing the agreement. The Superior
Court held that the agreement, which required husband to pay substantially less
Father alleged that he spends $2,700 per month of his $121,647 monthly net income on the 17
Child. The Court did not find this testimony credible. 9 than the guidelines would require, was not fair or reasonable and prejudiced the
welfare of the children.'
In Knorr v. Knorr, the parties entered a marriage settlement agreement that
required the husband to pay the wife $200 per month in child support until he
obtained employment.19 Later, the wife filed for an increase in child support. The
Pennsylvania Supreme Court concluded that the parties' agreement could not bind
the court, and gave only advisory effect to the agreement. The Court held that in
exercise of its duty to provide for the best interest of the child, the court may order
more child support than an agreement provides.'
In this matter, the credible evidence showed the large gap between Mother's
and Father's incomes, assets, and lifestyles. Under the circumstances, the Court
found that $2,500 per month from Father in support of Child is neither fair nor
reasonable. The Court's decision comports with appellate court treatment of
similar agreements and should be affirmed.
18 928 A.2d 333. 19 588 A.2d at 504. 20 Id. at 505. 10 IV. Mother's Income
The Court next addresses Father's last issue on appeal, regarding the Court's
calculation of Mother's income. Here, the Court exercised its discretion as
factfinder and departed from the Master's recommendation in one key respect. The
evidence supports the Court's finding.
The parties agree that Mother earns $39,465 per year from her three rental
properties, as the Master and the Court concluded. Two issues comprise Father's
challenge: whether the Court rightly rejected Father's request to assign Mother an
earning capacity and whether the Court rightly rejected the Master's attribution to
Mother of $57,139 in annual "unknown income."
Father presented an expert witness who opined that Mother had an earning
capacity of approximately $75,000 per year, which would likely increase to
$90,000+ within two years?' Neither the Master nor the Court found this expert
testimony credible in light of Mother's limited work experience and salary history.
The evidence established that Mother's most recent staff position was in 2008
where Mother worked as a sales representative for a granite company earning
approximately $25,000 per year.22 Since then, Mother has been out of the work
21 Exhibit A. 22 Tr. 11. 11 force and has primarily been a stay at home parent, apart from managing her rental
properties and helping her father with bookkeeping.
Mother is 53 years old. The Court did not find it credible that Mother could re-
enter the workforce at her age, with her level of experience, and immediately begin
earning $75,000 per year. Mother's current income, though not high, is well above
many low -wage hourly pay rates, and no evidence was presented to support a
finding that Mother could increase that amount by obtaining a full-time position or
by adding a part-time position that would feasibly both accommodate and
supplement her current work.
Father's accounting expert opined that Mother's annual earnings for 2017 and
2018 included $57,139 in "unknown income" for which there was "no
explanation."' Despite not knowing the source of the deposits into Mother's
accounts, the expert included them as annual income for Mother. Mother, however,
provided an explanation that this Court found credible. She explained that none of
the money went towards her own expenses. Rather, some deposits constituted
reimbursement for her father's business expenses. The remaining deposits
constituted occasional loans from Mother's sister, which helped make it possible
for Mother to take Child on vacation. Based on this evidence, the Court rejected
the Master's finding and excluded this amount, thereby reducing Mother's income.
23 Tr. 406. 12 V. Application of Hanrahan, Child's reasonable needs, and Mother's budget
Father's second and third issues on appeal challenge the Court's application of
the high income guidelines and governing caselaw to determine Father's child
support obligation. The Court will consider Father's second and third issues
together.
In Hanrahan, the Pennsylvania Supreme Court established the following
framework for determining child support obligations in high income cases: first,
apply the high -income guidelines; second, examine the parties' income and
expense statements to determine the child's reasonable needs; and third, deviate up
or down from the guidelines to meet those reasonable needs. The Court properly
conducted each step and the record supports the Court's result.
The Court agreed with the Master that the first step is to apply the guidelines.
Because the Court recalculated Mother's income and arrived at an amount lower
than the Master recommended, the Court then recalculated the guideline amount.
The 2018 figures resulted in child support of $8,539.74 per month.24
The Master's analysis ended there. She recommended that the Court accept the
guideline figures as equivalent to the Child's reasonable needs. Father correctly
za Father's monthly income of $121,647.33 plus Mother's monthly income of $2,714.54 equals a combined monthly income of $124,361.87. This results in a guideline child support amount of $8,539.74 per month. 13 argued on exceptions that Hanrahan requires further analysis. Thus, the Court next
reviewed the parties' income and expense sheets in light of the deviation factors.'
Father's undisputed monthly income is $121,647. He asserted that his expenses
related to Child's support amount to $2,700 per month. The Master found that
Father's testimony lacked credibility and the Court deferred to the Master's
credibility assessment. Further, and more significant to the Court's analysis,
Father's view of expenses fails to recognize that his considerable assets permit a
high standard of living that may not require separate monthly expenses for Child.
Mother presented a budget that focused on expenses she desires to incur to
permit her to provide Child a lifestyle in her care that is more like Father's. For
example, Mother does not have the wealth to own a home with an expensive pool,
so she included a country club membership in her proposed budget. Similarly,
Mother does not have a home gym or sports court, so she allocated a large portion
of her proposed budget to extracurricular activities and entertainment for Child.
The Court found persuasive the Superior Court's approach in Metzker v.
Marlowe.26 In Metzker, a multi -millionaire father was ordered to pay $5,730 per
month for support of the parties' child. The mother filed exceptions to the order
and submitted an expense sheet as required in high -income cases. Her expense
25 Pa. R.C.P. 1910.16-5. 26 No. 456 EDA 2019, 2019 WL 5212423 (Pa.Super. October 16, 2019).
14 sheet included name brand clothing, vacations, theater trips, and a new car. The
mother argued that those expenses were not incurred because she could not afford
to pay them, but would have been incurred if the father had been paying child
support in accordance with his income. In addressing the mother's appeal, Superior
Court concluded that the trial court should have conducted a reasonable needs
analysis by assessing the deviation factors in Pa. R.C.P. 1910.16-5 and making
findings as to whether the budget items are reasonable.
Here, the Court considered the deviation factors together with the parties'
expense statements in order to determine the Child's reasonable needs, as required
by Hanrahan. In doing so, the Court particularly considered evidence that related
to deviation factors (b)(5) and (b)(7). Regarding assets and liabilities of the parties,
the Court relied upon the evidence of Father's real estate holdings and investment
accounts, and the evidence presented by Mother about her rental properties and
debts.27 In regards to deviation factor (b)(7), the credible evidence discussed above
established that Mother and Father enjoy vastly different standards of living. These
factors potentially supported an upward deviation, but the Court then needed to
focus on Mother's budget.
27Mother has $11,000 in credit card debt and her attorney testified that Mother owed his firm $98,315 in counsel fees (Tr. 36, 186). 15 The Court accepted Mother's budget as reasonable, minus her legal fees and
office expenses. The Court thus determined that $19,618 per month would
adequately account for the Child's reasonable needs.' For the year 2017, the Court
made a downward deviation from the guidelines and determined Father's support
obligation to be $19,521.87 per month.29 For 2018 onward, the Court made an
upward deviation and determined Father's support obligation to be $19,190.33.30
Per Hanrahan, the Court considered the parties' income and expense sheets
together with the deviation factors set forth in Rule 1910.16-5 to arrive at an
amount that supports the Child's reasonable needs. In light of the relative assets
and liabilities of the parties, as well as their standards of living, the Court found
that the guideline support amount warranted a downward deviation for 2017 and
for 2018 an upward deviation based on the Child's reasonable needs.
VI. Counsel fees
Finally, Father argues that the Court erred in awarding Mother $49,157 in
counsel fees pursuant to 23 Pa.C.S. §4351. The Court properly exercised its
discretion in deferring to the Master's recommendation regarding counsel fees.
28 Legal fees and office expenses totaled $9,933 per month. The Court subtracted this amount from Mother's $29,551 budget to arrive at $19,618. 29 Father earned $10.4 million in 2017. The guideline child support amount would have been $38,167.48 per month. 3° The Court deviated upwards from $8,539.74 (the guideline amount for the parties' annual incomes of $1.46 million and $39,465). 16 Under 23 Pa.C.S. § 4351, if an obligee prevails in a proceeding to establish
paternity or to obtain a support order, the court may assess against the obligor
filing fees, reasonable attorney fees and necessary travel and other reasonable costs
and expenses incurred by the obligee and the obligee's witnesses. In awarding
counsel fees, a court may consider the conduct of the obligor and whether the
parties have disparate financial positions.3I The overriding concern is the best
interest of the child.32 Additionally, the Court is entitled to defer to a master's
report and recommendation.'
Courts have upheld awards of counsel fees in child support cases where one
factor was the parties' disparate financial positions. In Suzanne D. v. Stephen W.,
the Superior Court upheld a $22,000 award of counsel fees where the father's
income was almost 9 times higher than the mother's income. The Court held the
trial court correctly considered the financial difficulty mother would face if she had
to pay her total fees and how it would adversely affect the child.' Courts may also
consider the conduct of the parties during litigation in awarding counsel fees. In
Krebs v. Krebs,35 Superior Court awarded $15,408 in counsel fees to a mother
based on the father's unreasonable conduct during litigation.
31 Suzanne D. v. Stephen W., 65 A.3d 965 (Pa.Super. 2013). 32 Id. 33 Moran v. Moran, 839 A.2d 1091 (Pa.Super. 2003). 34 65 A.3d 965, 976. 35 975 A.2d 1178 (Pa.Super. 2009). 17 Here, Mother was seeking $98,315 in counsel fees pursuant to.23 Pa.C.S.
§4351. The Master awarded Mother 50% of her counsel fees, citing discovery
issues with Father.36 The Court deferred to the Master on this issue, an exercise of
discretion supported by the parties' disparate incomes, Father's conduct during
litigation, and the Child's best interests. It is undisputed that the parties have vastly
disparate incomes. As for Father's conduct during the litigation, Father failed to
turn over various financial documents, leading to a hearing in front of a discovery
master and thus higher legal fees. Father also attempted to have Mother's counsel
disqualified after she filed for modification, which also resulted in more litigation
and higher fees for Mother. Further, it would be in the Child's best interest that
Father pay 50% of Mother's counsel fees. Putting Mother furth6r into debt would
not be in the Child's best interest and would severely limit Mother's ability to
maintain the lifestyle that Child is accustomed to. The Court did not abuse its
discretion in deferring to the Master's recommendation.
36 Master's Report and Recommendations, Page 3. 18 VII. Conclusion
For the reasons discussed above, the Superior Court should dismiss Father's
appeal and affirm the Court's Order of December 18, 2019.
By the Court:
The Honorable Eleanor L. Bush