S.T.M. v. J.N. lll

• Court: Superior Court of Pennsylvania
• Decided: April 6, 2018
• Docket: 1426 EDA 2017
• Status: Unpublished

Opinion

J-A28004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.T.M. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : J.N., III : : Appellee : No. 1426 EDA 2017

Appeal from the Order Dated March 21, 2017 In the Court of Common Pleas of Delaware County Domestic Relations at No(s): 2011-00392, PACSES No. 091112286

S.T.M. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : v. : : J.N., III : : Appellant : No. 1487 EDA 2017

Appeal from the Order Entered March 21, 2017 In the Court of Common Pleas of Delaware County Domestic Relations at No(s): 2011-00392, PACSES NO: 091112286

BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 06, 2018

Appellant, S.T.M. (“Mother”), and Cross-Appellant, J.N., III (“Father”),

appeal and cross-appeal from the order entered in the Delaware County

Court of Common Pleas, which modified Father’s child support obligations.

We affirm.

In its opinion, the trial court fully and accurately sets for the relevant J-A28004-17

facts and procedural history. Therefore, we have no need to repeat them.

We add certain observations from the record. The parties have been locked

in ongoing disputes over child support arrears, invoking judicial resources

time and again. The current feud stems from Father’s petition to modify the

amount of child support arrears in a March 18, 2015 support order and

Father’s challenge to increased tuition costs for the parties’ middle child,

A.N., to attend a new high school. After two days of hearings, the trial court

entered on March 21, 2017, a support order reducing the amount of Father’s

child support arrears and requiring Father to contribute to A.N.’s tuition.

Mother filed a timely notice of appeal, and Father filed a timely notice of

cross-appeal. The court ordered the parties to file respective concise

statements of errors complained of on appeal per Pa.R.A.P. 1925(b); the

parties complied.

At No. 1426 EDA 2017, Mother raises the following issues for our

review:

DID THE TRIAL COURT ABUSE ITS DISCRETION BY REDUCING THE CHILD SUPPORT ARREARS OF [FATHER], BY A TOTAL OF $16,989.23 CONTRARY TO THE APPLICABLE LAW, EVIDENCE WITHIN THE RECORD AND ESTABLISHED POLICIES OF THE DELAWARE COUNTY DOMESTIC RELATIONS OFFICE?

DID THE TRIAL COURT ABUSE ITS DISCRETION BY ORDERING FATHER TO CONTRIBUTE TO [A.N.]’S PRIVATE SCHOOL TUITION WHERE FATHER AGREED THAT [A.N.] COULD AND SHOULD ATTEND PRIVATE SCHOOL, [A.N.] HISTORICALLY ATTENDED PRIVATE SCHOOL, AND FATHER COULD AFFORD TO CONTRIBUTE TO PRIVATE SCHOOL COSTS?

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(Mother’s Brief at 11).

At No. 1487 EDA 2017, Father raises the following issue for our

WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY MODIFYING FATHER’S CHILD SUPPORT OBLIGATION TO INCLUDE THE TUITION OF A NEW AND SIGNIFICANTLY HIGHER PRIVATE SCHOOL [TUITION], WHERE THE SAME WAS NOT REASONABLE AS: (1) FATHER WAS ALREADY PAYING FOR PRIVATE SCHOOL TUITION FOR THE SCHOOL THAT [A.N.] CONSISTENTLY ATTENDED SINCE KINDERGARTEN AND WAS ABLE TO CONTINUE ATTENDING; AND/OR (2) THE COST OF THE NEW SCHOOL’S TUITION WAS NOT REASONABLE IN LIGHT OF THE PARTIES’ INCOME AS WELL AS FATHER’S SIGNIFICANT DECREASE IN INCOME; AND/OR (3) MOTHER WAS SEEKING THE CHANGE TO THE NEW SCHOOL BUT FAILED TO MEET HER BURDEN TO SHOW A BENEFIT TO [A.N.]; AND/OR (4) MOTHER UNILATERALLY ENROLLED [A.N.] OVER FATHER’S OBJECTION AND IN VIOLATION OF JOINT LEGAL CUSTODY[?]

(Father’s Brief at 1-2).

Our standard review of child support orders 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 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.

-3- J-A28004-17

Krebs v. Krebs, 944 A.2d 768, 772 (Pa.Super. 2008) (quoting Mencer v.

Ruch, 928 A.2d 294, 297 (Pa.Super. 2007)).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Dominic F.

Pileggi, we conclude the parties’ issues merit no relief. The trial court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed June 22, 2017, at 17-36) (finding:

(Mother’s Issue 1) structure of arrears determination in March 18, 2015

support order demonstrates court did not intend to set arrears at

$15,235.52 or any “sum certain”; rather, court intended Domestic Relations

Office to recalculate Father’s arrears, based on retroactive support amounts

contained in March 2015 support order, status of previous arrears at time of

order, and Father’s payments under terms of any previous support

obligation; sum of $15,235.52 represents amount March 2015 order

required Father to make in initial lump sum payment toward overall support

arrears; further, this Court previously held lump sum payment of

$15,235.52 was not “sum certain”; based on foregoing, handwritten

reference in March 2015 support order to $31,566.52 in arrears is also not

“sum certain”; (Mother’s Issue 2/Father’s Issue) both parties testified

quality of Children’s education is very important; evidence demonstrated

parties recognized A.N.’s previous high school was substandard; before

Mother enrolled A.N. in another school, Father was aware A.N. had taken

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entrance exam for different school and bought A.N. study guide book; in

email to Mother, Father indicated he did not oppose sending A.N. to different

high school and noted quality and costs associated with potential new school

were important to Father; Father, however, did not participate in search for

new school; subsequently, Father failed to challenge Mother’s placement of

A.N. in new high school for several months; during search for new school

and after A.N.’s enrollment in new school, Father failed to exercise his rights

as shared legal custodian of A.N.; based on foregoing, Father’s argument

that he did not consent to Mother enrolling A.N. in new high school fails;

regarding increased tuition associated with A.N.’s new school, Father’s

earnings amounts to $210,000.00 per year; Father’s total monthly support

obligation, including tuition, is $3,682.91, approximately 32% of Father’s net

monthly income; in light of Father’s income, cost of A.N. attending new

school, and benefit to A.N. in attending new school, increase in Father’s

contribution to tuition is reasonable). The record supports the trial court’s

rationale, and we see no reason to disturb it. Accordingly, we affirm on the

basis of the trial court opinion.

Order affirmed.

-5- J-A28004-17

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/6/18

-6- Circulated 03/15/2018 04:40 PM

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 5� r; JtY},. C.C.P. NO. 2011-000392 Plaintiff/Appellant/Cross Appellee PACSES NO. 091112286

Superior Court No.: 1487 EDA 2017

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c: N Ann M. Funge, Esquire, Attorney for Plaintiff/Appellant/Cross Appellee ---, ,, �-.:!�i>J �;��ID :J:: � · r-o _"Ol,1

1801 Market Street, Suite 1845, Philadelphia, PA 19103 J_ J> ····I -· Aimee M. Taylor, Esquire, Attorney for Defendant/Appellee/Cross Appel�t j',.) C) u: 339 West State Street, Media, PA 19063 1..£1 {,�

OPINION

PILEGGI, J. DATE: June 22, 2017

This Appeal is considered a direct appeal, and cross appeal, from this

Court's March 21, 2017 Support Order1• Appellant/Cross Appellee is Plaintiff,

("Mother"). Appellee/Cross Appellant is Defendant,

("Father"). Mother and Father seek review of this Court's March 21, 2017 Support

Order, which provided for an order of child support payable by Father to Mother,

on behalf of two (2) minor children, J.N. and A.N. ("the children"). On appeal,

Mother raises the following issues:

1. Did this Court err in finding that Father's Income for 2017 is only comprised of his base salary of Two Hundred Ten Thousand Dollars ($210,000.00) and is not comprised of any "bonus" income?

1 On March 21, 2017, this Court contemporaneously flied Findings of Fact and Conclusions of Law in support of its Support Order. 2011-000392 1795 EDA 2016 6/22/2017 Page 2 of 36

2. Did this Court err in its interpretation its prior Support Order of March 17, 2015 with respect to the determination of total arrears owed as of March 17, 2015?

Defendant/Appellee/Cross Appellant Father filed a cross appeal of this

Court's March 21, 2017 Support Order. In his cross appeal Father raises the

following issue:

1. Did this Court err in finding that Father is responsible for contribution towards the child A.N.'s private school tuition, with respect to the child's enrollment at the Country Day School of The Sacred Heart?

PROCEDURAL HISTORY

On or about March 18, 2016, Father filed a Petition to Modify Support in

the Pennsylvania Court of Common Pleas of Delawar� County, Office of Domestic

Relations. This Court held a hearing, which commenced on January 4, 2017,

continued to a second day, and concluded on January 9, 2017.

On March 21, 20 l 7 a Support Order was entered by this Court. This Court's

Support Order contained, inter alia, the following obligations for support, payable

. from Father to Mother on a monthly basis:

1. Effective March l 8, 2016 to September 1, 2016: Four Thousand Sixty-

One Dollars and Thirty Cents ( $4,061.30) per month. ( See 3/21/17

Support Order, at ,r 135). 2011-000392 1795 EDA 2016 6/22/2017 Page 3 of 36

2. Effective September 1 • 201 6 to December 31 • 201 6: Four Thousand Eight Hundred Seventy-Four Dollars and Seventy-Four Cents ($4,874.7 4) per

month. (See Id at 1J 136).

3. Effective January 1_, 2017: Three Thousand Six Hundred Eighty-Two

Dollars and Ninety-One Cents ($3,682.91) per month. (See Id at 1J 137).

4. Credit to Arrears: Following the recalculation of arrears in accordance

with the bifurcated order contained herein, Delaware County Domestic

Relations is ordered to CREDIT Defendant in the amount of Fifteen

Thousand Two Hundred Thirty-Five Dollars and Fifty-Two Cents

($15,235.52). In addition, Domestic Relations shall CREDIT Defendant

another One thousand Seven Hundred Fifty-Four Dollars and Eleven Cents

($1,754.11) in accordance with Paragraphs 123- 134 above.2 Therefore

a total of Sixteen Thousand Nine Hundred Eighty-Nine Dollars and Sixty-

Three Cents ($16,989.63) shall be credited to Father's arrears. This

amount shall be applied so as to reverse the added arrears applied by

Domestic Relations on October 21 and October 22, 2015, in accordance

with its second interpretation of Judge Coll's March 17, 2015 Order, an

interpretation which this Court finds to be erroneous. (Emphasis in Original)

(See Id at 1J 140).

z In paragraphs 123-134 of Its March 21, 2017 Support Order, this Court explained its rationale for its interpretation of the March 17, 2015 Support Order. (See 3/21/17 Support Order at ,i 123-134). 2011-000392 1795 EDA 2016 6/22/2017 Page 4 of 36

On April 20, 2017 Mother filed a Notice of Appeal. On May 2, 2017, this

Court ordered Mother to provide a Concise Statement of Matters Complained of on

Appeal pursuant to Pa. R.A.P. l 925(b). On May 3, 2017, Father filed a Notice of

Cross Appeal. On May 10, 2017, this Court ordered Father to provide a Concise

Statement of Matters Complained on appeal pursuant to Pa. R.A.P. J 925(b). On

May 23, 2017, Mother filed a Concise Statement of Matters Complained of on

Appeal. On May 31, 2017, Father filed a Concise Statement of Matters

Complained of on Appeal.

FACTS

Appellant/Cross Appellee is. 5., /, /11. . {"Mother") who resides at 2922

Copper Beech Lane, Secane, Upper Darby Township, Delaware County, PA 19018.

See Ex. P-1. Mother graduated from Wharton School of Business in 2000 with her

degree in Business Management. N. T. I/4/17, at 139 1 2-18. After she met and married Father, she was a stay at home mom for three (3) or four (4) years and

then worked part time as a tax preparer. Id at 139 ,r 2-1 8. In 2009 she attended Temple University Law School and earned her Juris Doctorate in 201 3. Id Mother

currently assists individuals in filing their federal and state tax returns. In her tax

preparation practice, Mother has approximately one hundred and fifty (150) to

two hundred (200) clients. Id at 139-140. Mother is also the principal owner of a

law practice. In connection with her law practice, Mother represents clients, mainly in

the areas of tax and estate law. Id at 140-143. 2011-000392 1795 EDA 2016 6/22/2017 Page 5 of 36

Mother's income proved to be � difficult fact to ascertain, mainly due to her

contradictory and inconsistent testimony. Had Mother's background not consisted of

an Ivy league education and her employment experience not consisted of

managing her own law practice as well as her own tax preparation practice, this

Court may attribute Mother's poor credibility to being ill-prepared and inept.

However, given Mother's perceived intelligence and her keen ability to effectively

cross examine Father with respect to his income and assets, this Court, in its Findings

of Fact and Conclusions of law filed contemporaneously with its Support Order of

March 21, 2017, characterized Mother's credibility, with respect to her income, as

"at best, cagey and evasive." See 3/21/17 Support Order, at 1J 89. This Court

highlights Mother's lack of credibility with respect to her income as follows:

Mother at first testified that she did not know her earnings for 2016 and did

not bring any income information or any other documentation reflective of her

income to Court on the day of the hearing, a fact for which she attempted to blame

Father's attorney due to a failure of Father's attorney to "request discovery." N. T.

l/4/17, at 92-96. However, she was then presented with this Court's Order of

December 9, 2016, which had scheduled the hearing on the matter. Father's counsel

reviewed this Court's December 9, 2016 Order with Mother, which stated in

relevant part, "at this hearing all parties must be present and prepared to present

testimony and/or documents and argument." Id. at 961f 5-10. 2011-000392 1795 EDA 2016 6/22/2017 Page 6 of 36

Mother then attempted to evade questions posed by Father's counsel and

stated that "according to the support order," she was assessed an income of One

Thousand Five Hundred Dollars ($1,500.00) per month, which Mother agreed is

equivalent to Eighteen Thousand Dollars ($18,000.00) per year. Id. at 98-99.

Before that, Mother had testified that her income was approximately Two Thousand

and Fifty Seven Dollars ($2,057.00) per month. Id. at 9711' 19-24. Mother testified

that she recently purchased a new home. Id. at 1 00 1J 4-6. Mother was presented with a loan application that she had completed in order to finance the purchase of

a new home in 2015. Mother indicated on the loan application document that her

monthly income was Three Thousand Five Hundred Thirty Eight Dollars ($3,538.00)

per month. Id. at 101 1J 6-15; See Ex. D-6. Mother testified that she owns another

piece of real property. She stated that she applied for a loan to refinance that

property on June 10, 2015. Mother stated that on her application, she represented

her annual salary to be Forty Four Thousand Dollars ($44,000.00). Id. at 1021f 8-

19; Ex. D-7. Mother further stated that this amount was her gross pay prior to

payment of taxes. N. T. 1/4/17, at 1 091f 6-15. After testifying that she did not

have any documentation representative of her income, Mother testified that she

actually brought her 2015 tax returns to court. Id. at 112-113; Ex. P_-1.

Appellee/Cross Appellant is �M ("Father") who resides in the City

of Atlanta, Fulton County, Georgia. N. T. 1/4/17, at 151'J 11-15. Father holds a

Bachelor's Degree in Economics from the University of Pennsylvania and a Master's 2011-000392 1795 EDA 2016 6/22/2017 Page 7 of 36

of Business Administration from The University of Pennsylvania, Wharton School. Id.

at 77-78. Father is currently employed with Herndon Capital Management

("Herndon"), with a base salary of Two Hundred Ten Thousand Dollars

($210,000.00). Id. at 15-16. In previous years, Father also received an annual

bonus. However, that bonus is not guaranteed. It is based on the previous year's

productivity and resulting revenue generated by Herndon. See Id. at 16-22; 52.

Father testified that he began employment with Herndon in June of 2011. Id.

at 15 ,I 19-21. When he was hired in 2011, his title was Senior Investment Analyst.

Since 2011 he has been promoted three (3) or four (4) times, with the most recent

promotion being in January of 2016. Id. at 47-48. His current title is Deputy Chief

Investment Officer. Id Father's yearly income for 2014 was over Five Hundred

Thousand Dollars ($500,000.00). Id. at 73. Father's yearly income for 2015 was

approximately Four Hundred Fifty Thousand Dollars ($450,000.00). Id. Father's

yearly income for 201 6 was approximately Three Hundred Seventy Eight Thousand

Dollars ($378,000.00). Id.; Ex. D-1. Father testified that his income for 2017 will

only consist of his base salary of Two Hundred Ten Thousand Dollars

($210,000.00). Father testified that he will not receive a bonus in 2017. Id. at 18-

21.

With respect to his assets and expenses, Father purchased a new property

two and a half (2V2) years ago. The purchase price of the property was Four

Hundred Thousand Dollars ($400,000.00). Id. at 49 ,I 1-13. Father testified that - 2011 -000392 1795 EDA 2016 6/22/2017 Page 8 of 36

over the course of the last year and a half, a home has· been being constructed,

and that "the final mortgage amount may be Six Hundred Forty Thousand Dollars

($640,000.00)." Id at 4911 17 - 19. Father testified that his housing expenses are

greater now than they were before the purchase of the new home. Id at 51 11 21-

22.

Father and Mother are the parents of two (2} minor children, A.N., aged

fifteen (15) at the time of the hearing, and J.N., aged thirteen (13) ct the time of

the hearing ("the children"). Id at 25 111-4. The parties are also the parents of one

( 1 ) emancipated child. Id cit 86-87. The child J.�. is in seventh grade. J.N. attends

a private school in Philadelphia known as The City School. He has attended The City

School since kindergarten. Id at 25 11 7-1 0. · ·

The child A.N. attended The City School from kindergarten through eighth

grade. Id at 251J 18-19. As of the date of the hearing, A.N. is in the ninth grade.

A.N. entered the ninth grade at the commencement of the 2016-17 school year. At

the commencement of the 201 6- 17 school year, A.N. began attending The Country

Day School of the Sacred Heart ("Sacred Heart"). See Id. at 2511 11- 1 6.

According to Father, the reason A.N. attends Sacred Heart instead of The City

School is because Mother unilaterally removed A.N. from The City School and

enrolled her in Sacred Heart. Father claimed that this was done without his

knowledge or consent. Id at 25 1l 5-24. Despite the parties sharing joint legal 2011-000392 1795 EDA 2016 6/22/2017 Page 9 of 36

custody of the children, Father stated that he was unaware of Mother's unilateral

decision to enroll A.N. in Sacred Heart. Id. at 25-34.

A.N.'s removal from The City School after the conclusion of her eighth grade

school year and subsequent enrollment Into Sacred Heart gave rise to a dispute

concerning Father's obligation to contribute to Sacred Heart's tuition payments.

Mother osserted, and Father contested, that he was responsible for any of Sacred

Heart's tuition. Tuition for attendance at Sacred Heart is higher than tuition for The

City School. Father and Mother agreed that the tuition for The City School is Eight

Thousand Four Hundred Seventy Dollcrs ($8,470.00} per child. Id at 37,I 20-24;

Ex. D-4. If both children were enrolled in The City School for the school year of

2016-17, the total tuition would have been Fifteen Thousand Nine Hundred Forty

Dollars ($15,940.00).3 Id. at 38 ,I 17-21; Ex. D-4.

The tuition for A.N.'s attendance at Sacred Heart Is Eighteen Thousand Six

Hundred Eighty-Nine Dollars and Eighty Cents ($18,689.80)4 per year. Ex. P-2.

Therefore, the total yearly tuition for both children, with A.N. attending Sacred

3 The tuition amount is Eight Thousand Four Hundred Seventy Dollars ($8,470.00) per child, which for two (2) children would amount to Sixteen Thousand Nine Hundred Forty Dollars ($16,940.00). However, there is a One Thousand Dollar ($1,000.00) discount for having two (2} children enrolled in The City School. Therefore, the total amount for tuition for both A.N. and J.N. amounts to Fifteen Thousand Nine Hundred Forty Dollars ($15,940.00). N. T. 1/4/17, at 41 ,i 21-25; Ex. D-4. 4Mother had testified that A.N.'s tuition for Sacred Heart is Eighteen Thousand Eight Hundred Eighty Five Dollars ($18,885.00}. td. at 147 ,i 1-16. On January 9, 2017, when the parties reappeared to conclude the proceeding, Mother brought an invoice for Sacred Heart tuition, and corrected her prior testimony. Mother stated that the tuition "was actually a few hundred dollars less" than what she had previously stated. N. T. 1/9/17, at 10 ,i 14-19. The tuition statement was introduced as Ex. P-2 and indicated that the total tuition Is Eighteen Thousand Six Hundred Eighty-Nine Dollars and Eighty Cents ($18,689.80). Ex. P-2. 2011-000392 1795 EDA 2016 6/22/2017 Page 10 of 36

Heart, and J.N. attending The City School, is Twenty-Seven Thousand One Hundred

Fifty-Nine Dollars and Eighty Cents ($27, 159.80). See Ex. D-4; See also Ex. P-2.

DISCUSSION - MOTHER'S APPEAL

Mother raises the following issues on appeal:

1. Did this Court err in finding that Father's yearly Income for 2017 was not Inclusive of any extra Income beyond hts base salary of Two Hundred Ten Thousand Dollars ($21 0,000.00)i

Mother alleges that this Court erred in concluding that Father's income for

2017 consisted only of his base salary of Two Hundred Ten Thousand Dollars

($2 l 0,000.00). Mother alleges that this Court erred in its determination to exclude

extra income from a yearly bonus that Father hos received in previous years, based

upon this Court's reliance on Father's testimony as well as documentation from

Father's employer which indicated that he will not be receiving a bonus in 201 7. In

her Concise Statement of Matters Complained of on Appeal, Mother alleges that

this Court erred in its reliance upon Father's testimony and its reliance "on a self-

serving letter written by one of Father's peers within his company and which had not

been available on the first day of trial and only was when a second day of trial

became necessary." (See Mother's Concise Statement of Matters Complained of on

Appeal at ,r 2).

Pursuant to 23 Pa. CS.§ 4302and Pa. R.CP. No. 1910.16-2(a}, income

"includes compensation for services, including, but not limited to, wages, salaries, 2011-000392 1795 EDA 2016 6/22/2017 Page 11 of 36

bonuses, fees, ... and any form of payment due to and collectible by an individual

regardless of source." Id (Emphasis added).

The petitioner requesting modification of a support order has the burden of

demonstrating a change in circumstances which warrant the requested modification.

See 23 Pa.CS.§ 4352(a). If the trier .of fact finds that there has been a material

and substantial change in circumstances, the support order may be increased or

decreased depending upon the respective incomes of the parties, consistent with the

support guidelines and existing law, and each party's custodial time with the child

at the time the modification petition is heard. See Pa. R.CP. No. J 910. J 9(c). The

trial court, in determining whether modification of a child support order is

warranted, must consider all pertinent circumstances and base its decision upon facts

appearing in the record which indicate that the moving party did or did not meet

the burden of proof as to changed conditions. See Mackay v. Mackay, 984 A.2d

529 (Pa. Super. Ct. 2009). When the alleged change in circumstances is based

upon a reduction of income the Court may not order a reduction unless the

petitioner has proved by competent evidence a material and substantial change in

his financial circumstances. See Commonwealth ex rel De/baugh v. Delbaugh, 392

A.2d 717, 718 (Pa. Super. 1978). See also Shuster v. Shuster, 323 A.2d 760, 761

(Pa. Super. 1974); 2011-000392 1795 EDA 2016 6/22/2017 Page 12 of 36

Furthermore, when one party is seeking modification of a support order due

to an alleged reduction of income, this Court notes the applicability of the following,

pursuant to Pa. R.CP. 1910.16-2(d}.

(d) Reduced or Fluctuating Income.

(1) Voluntary Reduction of Income. When either party voluntarily

assumes a lower paying job, quits a job, leaves employment, changes

occupations or changes employment status to pursue an education, or is

fired for cause, there generally will be no effect on the support

obligation.

(2) Involuntary Reduction of, and Fluctuations in, Income. No

adjustments in support payments will be made for normal fluctuations

in earnings. However, appropriate adfustments will be made for

substantial continuing Involuntary decreases In Income, Including but not

limited to the result of illness, lay-off, termination, fob ellmtnatton or

some other employment situation over which the party has no control

unless the trier of fact finds that such a reduction in income was willfully

undertaken in an attempt to avoid or reduce the support obligation.

Pa. R.CP. No. 1910.16-2(d) (Emphasis added).

In determining a child support obligation, the trier of fact is entitled to weigh

the evidence presented and assess its credibility. McClain v. McClain, 872 A.2d

856, 862 n. 1 (Pa. Super. 2005). The assessment of the credibility of witnesses is 2011-000392 1795 EDA 2016 6/22/2017 Page 13 of 36

within the sole province of the trial court." Brotzman-Smith v. Smith, 650 A.2d 471,

474 {Pa. Super. 1994).

Furthermore, when making its determination with respect to an alleged

reduction of income, this Court notes that it must weigh evidence, beyond the

Petitioner's actual earnings, to the nature and extent of the Petitioner's property

and investments, and to his standard of living, when making a determination as to

whether the Petitioner has met his burden to prove a reduction in income. See Banks

v. Banks, 418 A.2d 1370, 1375 (Pa. Super. 19BO)(citing, Weiser v. Weiser, 362

A.2d 287 (Pa. Super. 1976) and Shuster v. Shuster, 323 A.2d 260 (Pa. Super.

1974)).

This Court carefully weighed the credibility of the evidence and testimony

presented during the January 4 and January 9, 2017 hearings on this matter. This

Court determined that Father testified credibly with respect to his income. Father's

testimony was supported by documentation from his employer, which was admitted

into evidence, and which was uncontroverted. In accordance with the testimony and

evidence provided, this Court found that Father, as the Petitioner in this matter, met

his burden to demonstrate an involuntary reduction in income, which this Court found

to be a substantial change in circumstance necessary to warrant modification of his

support obligation. Specifically, this Court found that credible evidence and

testimony demonstrated the following facts: 2011-000392 1795 EDA 2016 6/22/2017 Page 14 of 36

a) Father has been employed with Herndon Capital Management ("Herndon")

since 2011. When he was hired in 2011, his title was Senior Investment

Analyst. Since 2011 he has been promoted three (3) or four (4) times, with

the most recent promotion being in January of 2016. His current title is

Deputy Chief Investment Officer. N.T. 1/4/17, at 47-48.

b) Each year of his employment, Father is paid a base salary plus a bonus, paid

in March of each year. Although Father has received a bonus in each year

since his employment with Herndon, the bonus is not guaranteed. The amount

Father's bonus is based on amount of revenue generated by Herndon from

the previous year. For example, Father's bonus of One Hundred Sixty-Eight

Thousand One Hundred Thirteen Dollars ($168, 113.00) was paid to him in

March of 2016. However, it was based on revenue generated by Herndon in

2015. Id. at 16-1 9.

c) Father's yearly income for 2014 was over Five Hundred Thousand Dollars

($500,000.00). Id. at 731f l 9-20.

d) Father's yearly income for 2015 was approximately Four Hundred Fifty

Thousand Dollars ($450,000.00). See Id at 73 ,r 10-14. e) Father's yearly income for 2016 was approximately Three Hundred Seventy

Eight Thousand Dollars ($378,000.00). Id. at 73 � 1 5-17).

f) During the year 2016, Herndon experienced "difficult times." The company

has laid off approximately half of its employees. During 2016, Herndon 2011-000392 1795 EDA 2016 6/22/2017 Page 15 of 36

went from approximately fifty (50) employees to approximately twenty-two

(22) or twenty-three (23) employees. Id at 18-19.

g) Father has concerns about the security of his job and testified that Herndon is

not paying bonuses in an effort to avoid further layoffs. Id. at 21-22.

h) Father's income for 2017 will only consist of his base salary of Two Hundred

Ten Thousand Dollars ($210,000.00). Id. at 19-21; Ex. D-11.

i) Documentation, submitted from Father's employer, which was admitted into

evidence, verified that Father will not be receiving any additional income

beyond his base salary of Two Hundred Ten Thousand Dollars ($210,000.00)

"due to the company's financial status." See Ex. D� T 1.

Based on the findings summarized above, this Court concluded that Father

had met his burden to demonstrate a change In circumstance, specifically a

reduction of income. Furthermore, Father had sufficiently demonstrated that his

reduction of income was involuntary and non-fluctuating in accordance with the

standards prescribed under Pa. R.CP. No. 1910. l 6-2(d).

In addition, in evaluating whether Father had met his burden to demonstrate

a reduction in income, this Court also considered points raised in Mother's cross-

examination regarding changes in Father's expenses and debt burden. See Banks v.

Banks, 418 A.2d 1370 (Pa. Super. 1980). Specifically this Court considered the

following: 2011-000392 1795 EDA 2016 6/22/2017 Page 16 of 36

a) In 2014, Father purchased a lot in order to build a new home. The cost of

that property was Four Hundred Thousand Dollars ($400,000.00). N. T.

1/4/17, at 491f 9-13; See also 3/21/17 Support Order, at 1f 17-20.

b) Over the last year and a half, a home has been built on that property.

The final balance of a mortgage that Father has on the property "may be

Six Hundred Forty Thousand Dollars ($640,000.00)." N. T. l/4/17, at 49

1f l 7- l 9; See also 3/21/17 Support Order, at 1f l 7-20. c) Father's expenses with respect to housing are greater after the purchase

of the new home than they were before the purchase of the new home. Id

at 51 1f 21-22. d) No evidence indicated that Father's assets, expenses, or standard of living

were greater than that which could be sustained by Father's gross income

of Two Hundred Ten Thousand Dollars {$210,000.00) per year, which

equates to a gross income of Seventeen Thousand Five Hundred Dollars

($17,500.00) per month, which this Court calculated to be Eleven

Thousand Five Hundred Forty One Dollars and Forty Cents ($11,541.40)

in net monthly income. See 3/21/17 Support Order, at 1f 83.

e) No evidence indicated that Father has any additional assets, the financial

maintenance of which requires income greater than the calculated net

monthly income of Eleven Thousand Five Hundred Forty One Dollars and

Forty Cents ($11,541.40). See Id 2011-000392 1795 EDA 2016 6/22/2017 Page 17 of 36

f) No evidence indicated that Father has any additional expenses which

would exceed the calculated net monthly Income of Eleven Thousand Five

Hundred Forty One Dollars and Forty Cents ( $1 l ,541 .40).

Therefore, this Court concluded, that even in light of Mother's cross

examination relating to Father's assets, income, standard of living, and expenses,

Father had met his burden to show a reduction of income, and that for 2017, his

income will be comprised only of his base salary of Two Hundred Ten Thousand

Dollars ($210,000.00).

2. Did thls Court err in its Interpretation of the arrears provision of Its March 17, 2015 Order,

Mother alleges in her Concise Statement of Matters Complained of on

Appeal that this Court erred "by arbitrarily reducing the child support arrears of

Defendant ... by $16, 989 .23 contrary to applicable law, evidence within record,

and established policies of the Delaware County Domestic Relations Office." (See

Mother's Concise Statement of Matter's Complained of on Appeal, at 1{ 1 ).

A trial court is entitled to great deference in the interpretation of its own

orders. "Appellate review of a trial court's actions relies heavily upon the sound

discretion of the trial judge. Reversal occurs only in the event that a clear abuse of

the trial court's discretion is evident." Commonwealth v. Lebo, 713 A.2d 1158,

1161-62 (Pa. Super. 1998); (quoting, Commonwealth v. Restauri, 664 A.2d 593,

596-97 (Pa. Super. 1995)). This is especially true when an appellate court reviews 2011-000392 1795 EDA 2016 6/22/2017 Page 18 of 36

a trial court's interpretation of Its own orders in an area· particularly assigned to the

court's discretion. Commonwealth v. Lebo, 713 A.2d 1158, 1162 (Pa. Super. 1998}

(citing Equipment Finance, Inc. v. Toth, 476 A.2d 1366 (Pa. Super. 1984}

(explaining the great deference given trial courts in interpretation of their own

rules).

With respect to interpretation by the Court of another Judge's Order,5 the

Pennsylvania Superior Court has made It clear that the court is bound by the words

of the order itself, supplemented, if at all, only by statements or documents of

record at the time the order was made. Commonwealth ex rel Brennan v. Brennan,

195 A.2d 150, 151 (Po. Super. 1963).

In the instant matter, interpretation of this Court's March 17, 2015 Order of

Support ("201 5 Support Order")6 was called into question. The 2015 Support

Order provides, inter alia, the following relevant provisions:

Amount of Support:

1. Effective January 1, 2012 through to December 31, 2012, and based upon

[Mother's] net monthly income of $2, 123 and [Father's] net monthly income of

5 This Court's March 17, 2015 Order of Support was entered by the Honorable Michael F.X. Coll of the Delaware County Court of Common Pleas. This Court's March 21, 2017 Support Order, which contained a provision addressing its interpretation of the March 17, 2015 Order of Support, was entered by the Honorable Dominic F. Pileggi of the Delaware County Court of Common Pleas. 6 This Court notes that the Prior Support Order was subject to an appeal filed by Mother and a cross appeal flied by Father. The appeal and cross appeal were filed in The Superior Court of Pennsylvania, under the caption: .S, T, /11 r(F/K/A: 5,(11, 1)Appellant,v.: :f,N, °}.Appellee,_?,f.'JYI .. rJ.£1.YjA: fi,/V, v. Appellee. James Nelson. Appellant. and were docketed in the Superior Court of Pennsylvania, under Docket Numbers 1085 EDA 2015, and 1330 EDA 2015. 2011-000392 1795 EDA 2016 6/22/2017 Page 19 of 36

$10,421, a monthly order of Support shall be payable by the [Father] to the

[Mother] as follows:

Child Support $2, 116.50

2. Effective January 1, 2013 through to December 31, 2013, and based upon

[Mother's] net monthly income of $2,425 and [Father's] net monthly income of

$14,362, a monthly Order of Support shell be payable by the [Father] to

the [Mother] as follows:

Chlld Support $2,721.57

3. Effective January 1, 2014 through to December 31, 2014, and based upon

[Mother's] net monthly income of $2,955 and [Father's] net monthly income of

$25,689, a monthly Order of Support shall be payable by the [Father] to

Child Support $3,704.86

4. Effective January 1, 2015, and based upon [Mother's] net monthly income of

$2,955 and [Father's] net monthly income of $25,689, a monthly Order of

Support shall be payable by the [Father] to the [Mother] as follows:

a. Child Support (based on [Father's]

Base Salary) $1,982.16

b, Child Support (based on [Father's] Bonus; 50% of Difference

between the obligation with bonus and the obligation due to

base salary only) $711.65 2011-000392 1795 EDA 2016 6/22/2017 Page 20 of 36

Sub-Total Per Month $2,693.81 d. Ordered on Arrears (OOA},

applicable $269.00

Total Per Month $2,962.81

( 3/17/15 Order of Support, at 1-2) (Emphasis in Original).

Additional Terms:

1. Tuition - 2012 through 2014/2015 school year. The parties have stipulated

that [Father] owes [Mother] the sum of $16,331, representing [Father's] share

of the children's tuition (The City School and Church Farm School) from 2012

through the end of the 2014/2015 school year. This sum shall be added to

the arrears owed to [Mother]. [Mother] is responsible to ensure that both

schools are paid up to and including the 2014/2015 school year.

( 3/17/15 Order of Support, at 4 ,r 1 )(Emphasis in Original).

4. Arrears: Due to the retroactive nature of the within Order, as well as the

anticipated arrears owed to [Mother] as a result, within thirty (30) days, [Father]

shall make a lump sum payment towards the arrears in the amount of

$15,235.52. This payment SHALL be made through PACSES.

( 3/17/15 Order of Support, at 5 1f 4)(Emphasis in Original) 2011-000392 1795 EDA 2016 6/22/2017 Page 21 of 36

Following the above recited provisions, a handwritten provision is inserted

which reads:

"Total arrears of support plus tuition are $31,566.52. MFX Coll 3-17-15."

{Id) (Emphasis added).

Interpretation of the 2015 Support Order, with respect to the amount of

arrears owed by Father to Mother, gave rise to a dispute between the parties. The

dispute concerns two (2) different and conflicting interpretations:

First Interpretation: $31,566.52 IS NOT a sum certain of calculated arrears.7

Second Interpretation: $31,566.52 IS a sum certain of calculated arrears.8

This Court concluded that the First Interpretation was correct. Fundamentally,

this Court concluded that the $31,566.52 figure is the result of adding the fifteen

Thousand Two Hundred Thirty-Five Dollar and Fifty-Two Cent ($15,235.52) figure

specified as "a lump sum payment" that Father is to make "towards anticipated

7 This Court's review of Ex. D-8 indicates that, Domestic Relations implemented the March 17, 2015 Order on March 20, 2015 in accordance with the First Interpretation. Domestic Relations re-calculated the arrears balance in accordance with the retroactive application of support amounts specified on pages one (1) and two (2) the Order. (See 3/17/15 Order of Support, at 1-2). The re-calculated arrearage total was NOT Fifteen Thousand Two Hundred Thirty-Five Dollars and Fifty-Two Cents ($15,235.52) (the lump sum payment of anticipated arrears ordered by Judge Coll on March 17, 2015 to be paid by Father to Mother). See 3/17/15 Order of Support, at 5 ,i 4; See also Ex. 0-8. Instead, review of Ex. D-8 indicates that there was NO arrears balance, but that Father in fact had a credit in the amount of One Thousand Seven Hundred Fifty-Four Dollars and Eleven Cents ($1,754.11). See N. T. 1/9/17, at 47 � 11-15; see also Ex. 0-8. 8 On October 21-22, 2015, Domestic Relations implemented the Second Interpretation based upon a phone call made from an unidentified individual. In accordance with the Second Interpretation, Domestic Relations added One Thousand Seven Hundred Fifty Four Dollars and Eleven Cents ($1,754.11), which essentially offset the credit that was calculated in accordance with the First Interpretation. See N. T. 1/9/17, at 62 1112-23. Another adjustment was made to add Fifteen Thousand Two Hundred Thirty Five Dollars and Fifty-Two Cents ($15,235.52) on to Father's arrears balance. Because the tuition amount of Sixteen Thousand Three Hundred Thirty One Dollars ($16,331.00) was already added to Father's arrears on March 20, 2015, the addition of the $15,235.52 essentially set Father's total arrearage at $31,566.52 in accordance with the handwritten provision contained in Judge Colt's March 17, 2015 Order. Id. at 63 ,i 17-23. ' 2011-000392 1795 EDA 2016 6/22/2017 Page 22 of 36

arrears," according to the provision on page 5, paragraph 4, and the Sixteen

Thousand Three Hundred Thirty-One Dollar { $16,331.00} figure specified as tuition

payments "added to the arrears owed to Mother," according to the provision on

page 4, paragraph 1. (See 3/17/15 Order of Support, at 51f 4; 41f 1 ).

This Court concluded that the $15,235.52 figure was NOT intended to be a

sum certain of calculated arrears for the years of 2012, 201 3, and 2014. Because

the Fifteen Thousand Two Hundred Thirty-Five Dollar and Fifty-Two Cent

( $15,235.52) figure is not a sum certain of colculoted arrears, the resulting Thirty

One Thousand Five Hundred Sixty-Six Dollars and Fifty-Two Cents ($31,566.52),

derived from its addition to the tuition amount, is also not a sum certain of

calculated arrears. This Court's reasoning is as follows:

First, the Superior Court hos already provided an interpretation of the

Fifteen Thousand Two Hundred Thirty-Five Dollar and Fifty-Two Cent ($15,235.52)

figure. As stated herein, the 2015 Support Order was subject to on appeal filed by

Mother and a cross appeal filed by Father in the Superior Court of Pennsylvania.

See S;T;t,1, v,U:IY'. 2016 WL 1604389 (Pa. Super. 2016). In her appeal Mother

contended that this Court erred by determining that the "total outstanding child

support owed for the years 2012, 2013, and 2014 is $15,235.52." Id at 18

( citing Mother's Brief, at 17). The Superior Court held that Fifteen Thousand Two

Hundred Thirty-Five Dollars and Fifty-Two Cents ($15,235.52) was not a sum 2011-000392 1795 EDA 2016 6/22/2017 Page 23 of 36

certain of calculated arrears for 2012, 2013, and 2014. In support of its holding,

the Superior Court stated:

We conclude Mother misconstrues the trial court's order ...the Order provides, "[djue to the retroactive nature of the within Order, as well as the anticipated arrears owed to [Mother], as a result, within Thirty (30) days, [Father] shall make a lump sum payment towards arrears in the amount of $15,235.52 ... "

Thus, contrary to Mother's assertion, the trial court did not "determin[e] that the actual amount of child support due and owing to [Mother] is only $15,235.52 ... " Rather the trial court determined that $15,235.52 was the amount to be payable as an initial lump sum. Accordingly, we conclude Mother's claim is based on a misreading of the order and is therefore meritless .

.5.7.M, vq-:t N',, 2016 WL 1604389, 18-19 (Pa. Super. 2016).

Secondly, in support of this Court's interpretation as well as that of the

Superior Court, this Court notes the language of the 2015 Support Order itself:

Due to the retroactive nature of the within Order, as well as the anticipated arrears owed to [Mother] as a result, within thirty (30) days, [Father] shall make a lump sum payment towards the arrears in the amount of $15,235.52.

(3/17/15 Order of Support, at 5 ,I 4)(Emphasis Added).

As gleaned from the plain language of the 201 5 Support Order, Fifteen

Thousand Two Hundred Thirty-Five Dollars and Fifty-Two Cents ($15,235.52) is not

a sum certain of calculated arrears. It is "a lump sum payment towards the arrears"

that Father was to pay. The purpose of the Fifteen Thousand Two Hundred Thirty-

Five Dollar and Fifty-Two Cent ($15,235.52) lump sum payment was due to the 2011 -000392 1795 EDA 2016 6/22/2017 Page 24 of 36

retroactive nature of the 2015 Support Order and the anticipated arrears resulting

therefrom.

Thirdly, in accordance with the retroactivity of the 2015 Support Order, it is

the task of Domestic Relations to re-calculate the arrears to account for Father's

prior payments made in relation to the retroactively applied support obligation.

See Miller v. Nelson, 2016 WL 1604389, 19, n.12 (Po. Super. 2016); (citing,

3/7 7/15 Order of Support at 2)9; See also N. T. 1/9/7 7, at 18-21. This Court

relies on the computer program utilized by Domestic Relations to accomplish this

task and make the re-calculations accurately and efficiently. See N. T. l/9/17, at

18-23. In accordance with this understanding, this Court noted that pages one (1)

and two (2) of the 201 5 Support Order diligently provided for a support

obligation that was bifurcated into four (4) parts, and applied retroactively to

January 1, 2012. The 2015 Support Order provided for four (4) specific dollar

amounts of monthly support correspondent to the four (4) different time periods

provided in the Order. See 3/17/15 Order of Support, at 1-2}. This Court

concluded, as did the Superior Court, that Judge Coll would not have issued an

Order that was bifurcated into four (4} parts, with a specific support amount

correspondent to each of four (4} time periods, if he intended for the arrears to be

9 This Court notes that in footnote 12 of its Opinion, the Superior Court specifically stated that "the actual arrearage amount is determinable by the Domestic Relations Office (ORO} based on the order, the status of any previous arrears at the time of the order, and the subsequent history of payments through the Pennsylvania Automated Child Support Enforcement System. Such arrears will be subject to paragraph 4. [d.J on page 2 of the child support modification order." .5, "!;M • .;; ,T, N. 2016 WL 1604389, 19, n.12 (Pa. Super. 2016). 2011-000392 1795 EDA 2016 6/22/2017 Page 25 of 36

set at Fifteen Thousand Two Hundred Thirty-Five Dollars and Fifty-Two Cents

( $15,235.52) or any other sum certain. This Court concluded that the intention of the

201 5 Support Order was to provide for the arrears to be re-calculated by

Domestic Relations based on the support amounts set forth in the Order, the status

of any previous arrears at the time of the Order, and history of payments made by

Father under the terms of any previous support obligation. ( See Miller v. Nelson,

2016 WL 1604389, 19, n.12 (Pa. Super. 2016).

Because this Court concluded that the Fifteen Thousand Two Hundred Thirty-

Five Dollar and Fifty-Two Cent ($15,235.52) figure was not intended to be a sum

certain of calculated arrears owed to Mother, the handwritten reference to the

amount of Thirty-One Thousand Five Hundred Sixty-Six Dollars and Fifty-Two Cents

($31,566.52) is also not a sum certain of calculated arrears owed to Mother.10

10 In accordance with its finding that the $31,566.52 was not Intended to be a sum certain of total arrears owed as of March 17, 2015, this Court's Support Order of March 21, 2017 provided for Domestic Relations to CREDIT Father in the amount of Fifteen Thousand Two Hundred Thirty-Five Dollars and Fifty Two Cents ($15,235.52). In addition, Domestic Relations was ordered to credit Father another One thousand Seven Hundred Fifty-Four Dollars and Eleven Cents ($1,754.11). A total of Sixteen Thousand Nine Hundred Eighty-Nine Dollars and Sixty-Three Cents ($16,989.63} was ordered to be credited to Father's arrears. This amount was credited In order to reverse the added arrears applied by Domestic Relations on October 21 and October 22, 2015, In accordance with its second Interpretation of Judge Coll's March 17, 2015 Order, an interpretation which this Court found to be erroneous. (See 3/21/17 Support Order, at ,i 140). 2011-000392 1795 EDA 2016 6/22/2017 Page 26 of 36

DISCUSSION - FATHER'S CROSS APPEAL

Father raises the following issue in his cross-appeal:

1. Did this Court err In its determination that Father is responsible for contribution to the tuition for the· parties' child A.N. to attend The Country Day School of the Sacred Heartt

Father alleges, in his Concise Statement of Matters Complained of on

Appeal, that this Court erred in its determination that Father should be responsible

for contribution to the tuition payments in connection with the child A.N's enrollment

in the Country Day School of the Sacred Heart ("Sacred Heart"). Specifically,

Father's Statement of Matters Complained of on Cross-Appeal requests review of

one ( 1 ) issue, stated by Father as follows:

Whether the Trial Court erred and/or abused its discretion by modifying Father's child support obligation to include the tuition of a new and significantly higher private school, where the same was not reasonable as (1) Father was already paying for private school tuition for the school that the child consistently attended since kindergarten and was able to continue attending; and/or (2) the cost of the new school's tuition was not reasonable in light of the parties' income as well as Father's significant decrease in income; and/or (3) Mother was seeking the change to the new school but failed !O met (sic} her burden to show a benefit to the child; and/or (4) Mother unilaterally enrolled the child over Father's objection and in violation of joint legal custody.

Mother's Concise Statement of Matters Complained of On Appeal, at ,I 1. This Court notes the appellate standard of review with respect to child

support matters: 2011-000392 1795 EDA 201 (> 6/22/2017 Page 27 of 36

When evaluating a support order, [the Superior Court] may only reverse the trial court's determination where the order cannot be sustained on any valid ground. [The Superior Court] 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, [the Superior Court] note[s] that the duty to support one's child is absolute, and the purpose of child support is to promote the child's best interests.

Gibbons v. Kugle, 908 A.2d 916 (Pa. Super. 2006); (citing, Samii v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004)}.

The support guidelines allow the court to include private school tuition

in the support amount if the court determines that the need for private school

is a reasonable one. See Pa. R.CP. No. l 9 l 0. l 6-6(d). See also Fitzgerald v.

Kempf, 805 A.2d 529 (Pa. Super. 2002). If private school tuition is found to

be a reasonable need of a child, a support award may be adjusted so that

each parent provides a reasonable share of the tuition. Fitzpatrick v.

Fitzpatrick, 603 A.2d 633 (Pa. Super. 1992).

Whether a private school education is a reasonable need of the child

and a reasonable expectation and expense of the parents is determined by

deciding if private schooling 1) will benefit the child and if 2) private

schooling is consistent with the family's standard of living and station In life

before the separation. Knapp v. Knapp, 7 58 A2d 1205 (Pa. Super. 2000). 2011-000392 1795 EDA 2016 6/22/2017 Page 28 of 36

Evidence of what is reasonable may include whether, prior to their divorce or

separation, the parties sent their other children to private school under

circumstances similar to those facing the child under consideration. Gibbons v.

Kugle, 908 A.2d 916 (Pa. Super. 2006).

There is no dispute between the parties with respect to a reasonable

need for private school education. Furthermore, it is clear that both parties

value private school education as both parties are Ivy League educated and

both testified that the quality of their children's education is very important to

them. The parties' dispute concerns the specific choice of school for A.N., and

Father's allegation that Mother unilaterally made that choice, at a

considerably higher tuition expense, without Father's input or consent.

This Court concluded, based on the evidence and testimony presented

at trial, that A.N.'s enrollment in the Country Day School of the Sacred Heart

("Sacred Heart"), as opposed to continued attendance at The City School,

inured to the benefit of the child and that it was a reasonable expense,

considering the household income available to the parties, Father's earnings,

and station in life.

Specifically, with respect to the benefit to the child, the scope of

evidence with which to make a determination consisted mainly, if not entirely,

on the testimony of the parties, as well as circumstantial evidence. Testimony 2011-000392 1795 EDA 2016 6/22/2017 Page 29 of 36

elicited at trial indicated that The City School's high school program was

relatively new. Furthermore, the facilities at The City School's high school

were not acceptable to these parties, both of whom testified that the quality

of their children's education is of great importance. See Ex. D-3; See also

N. T. l/4/17, at 57, 156. With regard to the adequacy of The City School's

high school program, this Court found that Father's testimony was vague and

contradictory. Father seemed to focus simply on the fact that A.N. had been

attending The City School since Kindergarten as the reason for why she

should continue to attend school there. (N. T. l/4/T 7, at 43 ,r 6-18). For an educated man seemingly focused on attaining the best education possible for

his children, Father's testimony lacked any substantive knowledge concerning

the quality of education for The City School's high school program.

Mother's testimony with regard to the quality of the City School's high

school program was more direct, specific, and articulate. Mother testified that

the parties decided that The City School's high school program was

"substandard." N. T. l/4/17, at 1 23. Mother testified that The City School's

high school is located in the basement of a church in Center City, and the

entire high school, 9th through 1 21h grade, consisted of approximately forty

(40} children. Id at 122-1 23. Mother further testified:

[T)he resources that (The City School] has and the exposure and the things that they'll be able to do to prepare for college are significantly limited. There are no outdoor grounds. There would be no 2011-000392 1795 EDA 2016 6/22/2017 - Page 30 of 36

ability to play sports. There'd be no ability to socialize, no ability for prom. Id at 123.

Mother's testimony with respect to the parties' joint recognition that the

City School's high school program does not reach an acceptable standard, is

further supported by the following circumstantial evidence:

1. The parties' oldest child, was removed from The City School

after completion of his eighth grade year. He did not attend The

City School for high school, but instead attended another private

school, The Church Farm School.l ' See N. T. l/4/17, at 86-87;

123.

2. Father was aware of A.N.'s participation in a high school

entrance exam for Notre Dame Academy. N.T. 1/4/17, at 57-

60. After A.N. took the exam, Father himself then purchased a

book for A.N., which was titled Catholic High School Entrance

Exams. Id at 58-59; 1 20-122.

3. Although email correspondence from Father's counsel to Mother's

counsel in October of 2015 indicated that he opposed any

change in A.N.'s school, Father himself sent an email to Mother

11 Father testified that the Church Farm School was cheaper due to scholarships that the parties' oldest child received. However, this Court found that his enrollment in Church Farm School was also supportive of Mother's testimony that these parties both recognized that the City School's high school program was not acceptable for him, and thus looked at other schools in which to send him. 2011-000392 1795 EDA 2016 6/22/2017 Page 31 of 36

on July 6, 2016, in which he indicated that he was "not

opposed" to sending A.N. to another school but that the "quality

of the institution and the costs are important" to him. See Ex. D-

3.

This Court notes that the Superior Court has held an obligor

responsible for private school tuition, even in light of the obligor's

"disagreement" with the obligee's decision to send a child to private school.

See Murphy v. McDermott, 979 A.2d 373 (Pa. Super. 2009). In Murphy, the

Superior Court affirmed the trial court's order for a father to contribute

toward the cost of a child's private school tuition where the child would

benefit from a private school education and where such education was

consistent with the family's standard of living. The trial court reasoned that

the father could "easily and adequately" afford to· pay for the contribution,

and that in light of the father's station in life and assets, it would be in the

child's best interest to continue his private school education. Id at 37 5.

Father's assertion that he should not be responsible for Sacred Heart

tuition because he "did not agree" to the A.N.'s enrollment in Sacred Heart is

without merit. For this Court to hold that Father should not responsible for

contribution to Sacred Heart's tuition, solely because he "did not agree" to

send A.N. to Sacred Heart, would be contrary to the holding set forth In

Murphy. However, in its Findings of Fact and Conclusions of Law, filed 2011-000392 1795 EDA 2016 6/22/2017 Page 32 of 36

contemporaneously with its March 21, 2017 Order, this Court addressed

Father's allegation that Mother enrolled A.N. in Sacred Heart without Father's

consent. See 3/21/17 Support Order, at 1{ 99-122.

Specifically, this Court heard considerable testimony and evidence

presented with respect to the issue of whether Mother had informed Father of

her intent to remove A.N. from The City School and enroll her in Sacred

Heart, and whether Father, who is has shared legal custody of the children,

consented to Mother's decision to enroll A.N. in Sacred Heart. Father

presented email correspondence between his counsel and Mother's counsel

from October of 2015, which stated that Father was opposed to any change

in A.N.'s school for the 2016-17 school year. See Ex. D-2. The matter

evidently was not discussed again until December of 2015, during a parent

teacher conference, wherein Mother raised the issue of changing A.N's school

due to the fact that there was no school bus transportation from Mother's

house to The City School's high school location. N. T. l/4/7 7, at 55-56; Ex. D-

Mother testified that, between October of 2015, when Father's counsel

sent an email to Mother's counsel opposing a change in A.N.'s school, and

June of 201 6, there were numerous verbal discussions between the parties in

which the parties jointly recognized the need to change A.N.'s school due to

concerns over the quality of education at The City School, and were in 2011-000392 1795 EDA 2016 6/22/2017 Page 33 of 36

agreement to allow the child to test for admission to prospective high schools.

See N. T. l/9/17, at 119-1 23. Although there was no evidence of any

written communications between the parties from October of 2015 to June of

201 6, this Court found that circumstantial evidence supported and lent

credibility to Mother's testimony that Father consented to A.N.'s enrollment in

Sacred Heart:

1. Following the parent teacher conference, in December of 2015,

A.N. visited Father. At that point Father knew that A.N. hod taken

an entrance exam to Notre Dame Academy and that Mother was

concerned over transportation issues with respect to The City

School's high school location. Following A.N.'s visit with Father in

December of 2015, Father sent A.N. a book titled Catholic High

School Entrance Exams. N.T. 1/4/17, at 58; 120-122; 158-159.

2. As stated above, Mother testified credibly with respect to the

parties joint recognition that it would not be in A.N.'s best interest to

attend The City School for high school, due to the substandard

quality of the high school program. Id. at 123. This joint recognition,

as testified by Mother, is supported by the fact that the parties'

oldest child did not attend The City School for high school. Id at

86-87; 123. 2011-000392 1795 EDA 2016 6/22/2017 Page 34 of 36

3. In his email of July 6, 2016, Father stated that he is "not opposed"

to sending A.N. to another school, although the quality of school

and the costs are important to him. See Ex. D-3

4. Mother's testimony that, subsequent to the email correspondence of

July 6, 2017, Father agreed to A.N.'s attendance at Sacred Heart

in "July or August" is substantiated by the fact that Father did not

file any pleading in the appropriate forum to enforce his legal

custody rights which he now alleges were violated by Mother. See

N.T. 1/4/17, at 126; 160-161.

Furthermore, it is unclear why Father waited over six (6) months and

did not participate in selection of schools for the upcomlnq school year when

he knew in October of 20 l 5 that Mother wanted to change the child's school

due to transportation concerns, as well as concerns over the inadequacy of

the high school facilities at The City School. At trial, Father focused on his

legal custody rights which he insisted had been violated by Mother's

unilateral decision to enroll A.N. in a new school. He seemed to construe his

legal custody rights as some sort of retained veto power, exercisable at any

time, over Mother's actions with respect to decisions that need to be made to

further A.N.'s education. This Court found that Father's focus on his legal

custody rights was misplaced in light of the fact that he did not exercise his

legal custody duties commensurate with those rights. He did not show any 201 l -000392 1795 EDA 2016 6/22/2017 Page 35 of 36

evidence that he offered any suggestions or alternative options with respect

to the child's future schooling. He showed no evidence that he attempted to

participate in addressing Mother's concerns with regard to transportation or

her concerns regarding the continued quality of A.N. 's education.

Father's expressed concerns and main reasoning for opposing A.N.'s

enrollment in Sacred Heart were based upon financial concerns as opposed

to academic. N. T. l/4/17, at 43-44. Because Father's expressed financial

concerns are relevant to the determination as to whether the costs associated

with A.N.'s enrollment in Sacred Heart are reasonable, in light of Father's

assets, earnings, and station in life, this Court addressed this issue in the

Findings of Fact and Conclusions of law, filed contemporaneously with the

March 21, 2017 Support Order. See 3/21/17 Support Order, at ,I 99-

122).

Specifically, this Court found that Father's current earnings amounted

to Two Hundred Ten Thousand Dollars ($210,000.00) per year. Id at ,I 83.

This Court calculated Father's net monthly income for the purposes of child

support at Eleven Thousand Five Hundred Forty-One Dollars and Forty Cents

( $11,541 .40). Id At Father's current net monthly income, his base child

support was calculated by this Court to be One thousand Nine Hundred Fifty-

Three Dollars and Twelve Cents ($1,953.12) per month. Id at ,r 98a. Contribution towards total tuition (The City School for J.N. plus Sacred Heart 2011-000392 1795 EDA 2016 6/22/2017 Page 36 of 36

for A.N.) was calculated to be One Thousand Seven Hundred Sixty-Five

Dollars and Thirty-Nine Cents ($1,765.39). Id. at ,I 98c. Father was given

credit for health insurance coverage that he provides for the children. Id at ,I

98b. Credit given to Father was calculated at Thirty-Five Dollars and Sixty

Cents per month ( $35.60). Id. Therefore, including tuition Father's total

monthly support obligation was calculated by this Court to be Three

Thousand Six Hundred Eighty-Two Dollars and Ninety-One Cents ($3,682.91)

per month. Id. at ,I 137f. This monthly amount (the combination of base

support plus tuition for both children) is equivalent to approximately thirty-

two percent (32%) of Father's net monthly income. In light of this fact, as well

as the determined benefit· of Sacred Heart for the child, in accordance with

tlie case law cited herein, this Court found that A.N.'s Sacred Heart tuition .

was a reasonable cost.

CONCLUSION

For the above stated reasons this Court's Support Order dated March 21,

2017 should be affirmed.

BY THE COURT:

Dominic F. Pileggi, J. NO'nCE PURSµ�11]LE 236 MAllED__lz._ 11 Xl DOME TIC RE fioNS