Case Information
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 KEISHA HAMILTON IN THE SUPERIOR COURT OF
PENNSYLVANIA v.
ANDRE E. HAMILTON,
Appellant No. EDA 2016 Appeal from the Order Entered May 9, 2016 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): 14-12664 PACSES# 219115003
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J. FILED MAY 09, 2017
MEMORANDUM BY DUBOW, J.: Appellant, Andre E. Hamilton ("Father"), appeals May 9, 2016 Order, which denied parties' Exceptions ordered Appellant to pay $1,074 per month in Appellee, Keisha Hamilton ("Mother"). Upon careful review, we vacate remand for further proceedings.
We glean the following facts from our review of the certified record.' Mother were married on August 28, 2013, separated on September 2014, being involved in romantic relationship for approximately five years. They have one minor child.
' certified not contain transcript of the December 29, 2015 hearing before the Support Master or copies exhibits submitted the Support Master on date. Therefore, we rely on the factual findings stated Report of Master Support, hearing date 12/28/15, 3-8 and Trial Court Opinion, filed at 3-5.
Mother a licensed practical nurse who graduated from high school completed one year of college. Mother stopped working 2010 after Father told her he would support her, the birth of their child, Mother remained at home to care for their child. In 2015, Mother submitted twenty applications for employment, but received no offers.
Father graduated high school completed three years of college. Father admitted to dealing drugs for several years, until 2012 when acquitted of attempted murder, but convicted possession of a firearm. Father served approximately year prison.
Father currently owns On Rise Productions, LLC, business that owns real estate generates monthly rental income of $980. Father's 2013 2014 Schedule C tax forms for On Rise Productions, LLC, reflect of $10,158 $6,634, respectively. Father owns second business, Rich and Poor Rental, LLC, which rents out used vehicles. Father's 2014 Schedule C Tax form for Rich and Poor Rental, LLC, reflects income of $5,760.2
On November 2014, Mother filed Complaint for support. The parties appeared before Support Master, who submitted proposed order pay $2,317 per month two children, one of whom not his biological child. Mother Father both filed Exceptions. certified not contain any copies of Father's tax documents.
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The trial court granted the Exceptions and remanded the case a new Support Master for full hearing.
The parties appeared before new Support Master, who submitted a proposed order on December 28, 2015, imputing annual income of $75,000 to Father ordering him pay $1,047 per month for the support child. Both parties filed Exceptions. On May 9, oral argument, the trial court denied the Exceptions adopted the Support Master's proposed order its final order. timely appealed. Both Father the trial court complied with
Pa.R.A.P. 1925.
Father raises the following issues on appeal:
1. Did court err by denying the support [E]xceptions of [Father] overstating net income attributable to [Father]?
2. Did court err by denying the support [E]xceptions of [Father] understating the net income attributable [Mother]?
3. Did court err by exhibiting extreme prejudice against [Father] by stating was "drug dealer" he "scum"? decision denying the support exceptions should be reversed on this basis alone.
Father's Brief at (reordered ease of disposition).
Our standard of review well settled support cases. "When evaluating order, this Court may only reverse the trial court's where the order cannot be sustained on any valid ground. We will not interfere with broad discretion afforded the trial court absent an abuse discretion or insufficient evidence to sustain the support order." Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (citations omitted). Further, "an abuse of discretion requires proof of more than a mere error of judgment, but rather evidence law was misapplied or overridden, or judgment manifestly unreasonable or based on bias, ill will, prejudice or partiality." Portugal v. Portugal, 798 A.2d 246, 249 (Pa. Super. 2002) (quotation marks and citation omitted).
"[T]he duty support one's is absolute, and the purpose of child support promote the child's best interests ... through the provision of reasonable expenses." Mencer v. Ruch, 928 A.2d 294, 297 (Pa. Super. Id. Child support is 2007) (quotation marks citations omitted). awarded pursuant Statewide guideline which based the reasonable needs of the child seeking ability of the parent See 23 Pa.C.S. § 4322(a). In making these provide support. determinations, the guideline "shall place primary emphasis on the net incomes earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses other factors, such as the parties' assets, warrant special attention." /d.3 Pursuant definitions contained 23 Pa.C.S. § income
"includes compensation services, including, but not limited to, wages, salaries, bonuses, fees, compensation kind, commissions similar items; income derived from business; gains derived from dealings in property; interest; rents; royalties; dividends; annuities; life insurance endowment contracts; all forms retirement; pensions;
In his first issue, Father avers that trial court abused its discretion when it imputed an annual income of $75,000 to him. He argues there insufficient evidence court's assigned earnings capacity and, more specifically, "no correlation or connection between the decision of earnings capacity any kind legal employment available [Father]." Father's Brief at 18. We agree.
This Court has stated that "a person's support obligation is determined primarily by the parties' actual financial resources their earning capacity. Although person's actual earnings usually reflect his earning capacity, where there divergence, the obligation is determined more by earning capacity than actual earnings." Woskob v. Woskob, 843 A.2d (Pa. Super. 2004) (citations omitted). "[T]he of earning capacity not involve the consideration of what one could theoretically earn." D.H. v. R.H., 900 A.2d 922, 930 (Pa. Super. 2006) (citation omitted). Rather, based on "the amount one could it income from discharge of indebtedness; distributive share of partnership gross income; income respect of decedent; income an interest in estate or trust; military retirement benefits; railroad employment retirement benefits; social security benefits; temporary permanent disability benefits; workers' compensation; unemployment compensation; other entitlements money or lump sum awards, without regard to source, including lottery winnings; tax refunds; insurance compensation or settlements; awards or verdicts; any form payment due and collectible by an individual regardless of source." 23 Pa.C.S. § 4302. It is, therefore, reasonable presume statutory definition includes income derived only from legal sources activities.
realistically earn under the circumstances, considering his or her age, health, mental physical condition and training." Id. (citation omitted) (emphasis added).
With respect Father's income, the Support Master stated the following in his report:
The Master not find the [Father]'s testimony regarding his income to be credible. [Father] testified he stopped generating income illegal activities in [2012], but the testimony clearly indicates continued paying the household expenses for [Mother], provided the [Mother] with weekly spending money made cash purchases worth tens of thousands of dollars until September of 2014 when the parties' separated.
As such, based on the testimony offered in consideration of [Father]'s monthly expenses purchases, the Master concludes the [Father] has net annual income amount of $75,000.
Report Master Support, dated 6-7.
Upon denying the parties' Exceptions accepting Master's recommendation, trial court opined:
[Mother] would have [Father]'s support obligation be based upon equivalent his lavish spending habits during his drug dealing days, which afforded her designer shoes and clothing, whereas [Father] would have it be based upon his reported earnings from his businesses, plus rental income, or approximately $24,000. In other words, the court is requested to either calculate support obligation based upon [Father]'s continued illicit earnings, implicitly condoning same, or calculate support obligation based [Father]'s reported minimal income, which the Master rejected lack of credibility, particularly since [Father]'s recent spending habits exceeded those earnings.
There was no reported testimony from [Father] denying that he paid the expenses cited by [Mother] 2014 before the parties separated, which was reportedly ceased his illegal activities. Therefore, imputing income based upon [Father]'s recent spending history, as described by [Mother], would fairly reflect [Father]'s earnings available for child support, presumably from his business. This would satisfy the requirements of Rule 1910.16-2(d)(4), which cites earnings history as of the factors be considered setting a support obligation.
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The proposed order of the Master was based upon calculation of Obligor's spending record, asserted by [Mother], since [Father]'s testimony about his income was found not be credible by the Master. Hence, the income imputed [Father] based best facts available the Master showing [Father]'s earnings history. It cannot be concluded that this was manifestly unreasonable method for calculating earning capacity.
Trial Court Opinion, filed 7/19/16, at 7-8.
We disagree with trial court's assessment. trial court first implies earning money his "continued illicit earnings," but then states Mother's description of Father's spending history "would fairly reflect his earnings available support, presumably from his businesses." Trial Court Opinion, filed 7. As stated previously, of earning capacity should not involve the consideration of what party could theoretically earn, but rather amount party could realistically earn under the circumstances. See D.H. v. R.H., supra at (citations omitted). As such, trial court should not "presume" where coming from; rather, it must consider the evidence presented determine amount of income that Father could realistically earn under the circumstances.
We find further error trial court's conclusion that it relied on Rule 1910.16-2(d)(4) to determine Father's earning capacity. See Trial Court Opinion, filed 7; Pa.R.Civ.P. No. 1910.16-2(d)(4). Nothing in record supports that conclusion.
Pa.R.Civ.P. No. 1910.16-2, pertaining the calculation of income for purposes of determining support obligations, requires the trier of fact determine "that party action has willfully failed to obtain or maintain appropriate employment," then "the trier of fact may impute to that party equal to party's earning capacity." Pa.R.Civ.P. No. 1910.16-2(d)(4) Rule then requires that "age, education, training, health, work experience, earnings history child care responsibilities" be Id. considered determining earning capacity full-time position. Further, the Rule states: "[d]etermination what constitutes reasonable work regimen depends all relevant circumstances including the choice jobs available within particular occupation, working hours, working conditions whether party has exerted substantial good faith efforts find employment." Id.
In the instant case, record devoid of evidence Father "willfully failed obtain or maintain appropriate employment[.]" Pa.R.Civ.P. No. 1910.16-2(d)(4). Although the reflect had, at point, engaged in illegal activities to earn income, that "employment" neither "appropriate" nor in the best interest of the child. Father's assertion that he no longer deals drugs not any conclusion relevant a consideration whether "willfully failed obtain or maintain appropriate employment." Id.
In addition, even assuming arguendo that had willfully failed to obtain or maintain appropriate employment, the reflects that trial court's of Father's earning capacity was based solely on Father's spending history.4 trial court had inadequate evidence from which determine what would constitute a "reasonable work regimen" for Father, or which consider the relevant factors, including "age, education, training, health, work experience, earnings history child care responsibilities[.]" Id.
Rule 1910.16-2(d)(4) requires a thorough inquiry into relevant factors necessary to establish Father's true earning capacity. See Haseirig v. Haselrig, 840 A.2d 338, 341 (Pa. Super. 2003) ("the law Pennsylvania clearly requires the trial court conduct full inquiry before making factual Spending history may certainly reflect party's assets. However, if assets are not producing income defined by 23 Pa.C.S. §4302, they may only be considered trial court determines deviation from the guidelines is appropriate. See Pa.R.Civ.P. 1910.16-5. Here, Support Master stated deviation from the guidelines not warranted trial court adopted finding. Report Master Support, hearing date 12/28/15, at 7-8. an obligor's true earning capacity"). Here, thorough
inquiry did not occur record contains insufficient evidence from which impute an earning capacity to Father based on appropriate (i.e. legal) employment.
Accordingly, we remand for full evidentiary hearing to determine if imputing an earning capacity proper what earning capacity should be based on the factors described Rule 1910.16-2(d)(4). In light of our disposition, we decline to address Appellant's remaining issues.5
Order vacated. Case remanded with instructions. Jurisdiction relinquished.
Judgment Entered. /
4
if -
Jseph D. Seletyn, Eso '
Prothonotary
Date: 5/9/2017
[5] By command of our Supreme Court, this Court not permitted, sua sponte, order judge to recuse herself from case. Commonwealth v. Whitmore, 912 A.2d 833-32 (Pa. 2006). We nonetheless would be remiss if we did not express our concern about the trial court's remarks on regarding Mother Father, referring them "Ms. Princess" "scumbag drug dealer[,]" stating that "both them are like, you know, scumbag personified." N.T. Exceptions Hearing, 17-18. has the option file Motion Recusal remand develop appropriate record.
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