Bauer, J. v. Bauer, R.
1690 WDA 2016
| Pa. Super. Ct. | Dec 13, 2017Background
- Robert (Father) and Jean Bauer (Mother) divorced; two children born 1999 and 2002. They initially shared legal custody and 50/50 physical custody after separating in 2012.
- Father filed a petition to modify child support on May 31, 2016; a support conference produced an interim order requiring Father to pay $1,016.30/month and immediate arrears.
- Father objected; after a de novo hearing the trial court ordered Father to pay $984.17/month (current support plus arrears) in an October 7, 2016 order.
- At the time of the de novo support hearing, an August 12, 2016 custody order had temporarily suspended Father’s custody of one child (B.B.) and reinstated 50/50 custody for the other (M.B.); the parties later consented to reinstate the prior 50/50 custody order.
- Father appealed the October 7, 2016 support order (1690 WDA 2016). While that appeal was pending, Father filed a motion to enforce/correct the custody/ support arrangement; the trial court denied that motion on February 17, 2017, and Father appealed again (360 WDA 2017).
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether trial court misapplied custody status in calculating support | Trial court used the custody order in effect at hearing; support obligation independent of custodial time | Father argued court ignored the prior 50/50 permanent custody order and relied on temporary suspension/unilateral custody | Held: No error — court properly used custody status in effect at de novo hearing; custodial time does not reduce support obligation |
| Whether Mother’s 401(k)/IRA distribution should be included as income for support | Distribution was equitable distribution from divorce, not income | Father argued the taxable IRA/401(k) distribution reported on Mother’s tax return should count as income | Held: Distribution excluded from income for support as it was marital property/equitable distribution |
| Whether Father’s income should be imputed at $60,000 rather than using actual 2015/2016 earnings | Court considered earning capacity based on experience and consent at prior conference | Father argued actual earnings were lower and court erred in imputing $60,000 based on pre-termination salary | Held: No abuse of discretion — court permissibly imputed $60,000 earning capacity, considering factors and prior consent |
| Whether trial court had jurisdiction to hear Father’s February 2017 enforcement/modification motion while support appeal was pending | Mother/trial court: motion sought support modification and trial court lacked jurisdiction while appeal pending | Father argued trial court retained authority to enforce orders despite the pending appeal | Held: Appeal from February 17, 2017 order quashed — trial court lacked jurisdiction over support-modification request while October 7, 2016 support order was on appeal |
Key Cases Cited
- W.A.M. v. S.P.C., 95 A.3d 349 (Pa. Super. 2014) (standard of review for support order and abuse of discretion principle)
- Laws v. Laws, 758 A.2d 1226 (Pa. Super. 2000) (earning capacity governs support, not actual earnings)
- Plunkard v. McConnell, 962 A.2d 1227 (Pa. Super. 2008) (factors for determining earning capacity)
- Bowser v. Blom, 807 A.2d 830 (Pa. 2002) (earning-capacity principles cited)
- Berry v. Berry, 898 A.2d 1100 (Pa. Super. 2006) (marital property/equitable distribution cannot be counted as income for support)
- Kimock v. Jones, 47 A.3d 850 (Pa. Super. 2012) (a child/parent relationship or custodial time does not relieve support obligation)
- Orfield v. Weindel, 52 A.3d 275 (Pa. Super. 2012) (trial court loses jurisdiction over a proceeding once notice of appeal is filed)