Bono v. Bono, 112520 PASUP, 250 EDA 2020

Docket Nº:250 EDA 2020
Opinion Judge:McLAUGHLIN, J.
Case Date:November 25, 2020
Court:Superior Court of Pennsylvania




No. 250 EDA 2020

Superior Court of Pennsylvania

November 25, 2020


Appeal from the Order Entered December 23, 2019 In the Court of Common Pleas of Northampton County Domestic Relations at No(s): DR-0109117




Terry B. Bono ("Father") appeals from the child support order entered on December 23, 2019. He argues the trial court erred in ordering the parties to take depositions prior to the de novo hearing, in assessing his income and the income of his ex-wife, Maria J. Bono ("Mother"), and in allocating child care expenses between the parties. We affirm.

Mother and Father have two minor children. Mother filed a complaint for child support in September 2017, and the parties first appeared for a hearing before a domestic relations conference officer in October 2017. The conference officer issued a recommended order that the trial court adopted as an interim order on October 26, 2017.1 The court ordered Father to pay Mother $1, 234 monthly, plus arrears.

Father filed a written demand for a de novo hearing before the trial court. The parties appeared before the court on December 18, 2017, and the court ordered the parties to complete depositions and submit the transcripts of the depositions and briefs to the court prior to the de novo hearing. See Order, 12/18/17, at 1. After several continuances, the parties submitted the transcripts and briefs at a de novo hearing in October 2018. Following the hearing, the court entered an order finalizing the October 26, 2017 support order for the period of September 11, 2017, through December 31, 2017. See Order, 11/14/18, at 1.2 The court then remanded the case for a change of circumstances hearing and a new support recommendation for the period starting January 1, 2018. See id.

Father filed a petition for modification. The parties appeared for an office conference in early January 2019, and the attorneys for both parties advised the conference officer to refer to the previous depositions for the parties' respective positions. See Trial Court Opinion, filed 3/12/20, at 6. The court entered an order continuing the proceedings until receipt of the parties' 2018 tax documents. Order, 1/23/19, at 1. The court entered an interim support order on April 5, 2019, 3 and a modified order of support on May 31, 2019, both of which ordered Father to pay child support starting on January 1, 2018.

Both Father and Mother demanded a de novo hearing. Father's counsel withdrew prior to the September 18, 2019 hearing, and Father was unrepresented. At the hearing, Father complained that the court had assessed his earning capacity as a "painter, construction, maintenance worker," based on the upper end of the values in the PA State Wage Occupational Survey, rather than the midrange. N.T., 9/18/19, at 5-6. He further argued that his earning capacity should be lower, to reflect the economic circumstances of Carbon County, rather than the entire state. Id.; see also Tr. Ct. Op. at 11. In addition, Father argued the court erred when calculating his rental income based on his 2018 tax return. He specified the return displayed an annual rental income of $20, 331, or $1, 694 per month, which was lower than the amount on the modified order. N.T. at 9. He also argued the court did not include Mother's income from paragliding activities in the calculation of her net income. Id. at 10-11.4

On December 23, 2019, the court entered a final order of support for three periods: January 1, 2018, through April 17, 2018;5 April 18, 2018, through June 23, 2019; and June 24, 2019, forward. For the first period, the court assessed Mother's annual earning capacity as an office clerk to be $22, 730; for the second and third periods, the court used Mother's actual income from full-time employment. For all three periods, the court added Mother's rental income of $718.67 per month to her assessed/employment income. The court found Mother's monthly net income to be $2, 349.48 for the first period, and $3, 398.76, for the second and third periods.

For all three periods, the court assessed Father's annual earning capacity at $42, 540.00, using the salary of "an experienced painter, construction, [and] maintenance worker" from Carbon County Labor Market of PA Occupational Wage Survey." Order, 12/23/19, at 1. The court found Father's rental income to be $2, 937.25 per month, and calculated his monthly net income to be $5, 773.79. The court ordered Father to pay support for each period in the amount of $1, 529, $1, 461, and $1, 549 per month, respectively, plus arrears.6

The court noted that it calculated both parties' rental incomes using their 2018 Federal Income Tax returns. It also stated it entered the order "without prejudice to either party filing a Petition for Modification upon finalization of the 2019 Federal Income Tax Returns." Id. at 2. Father appealed, and raises the following issues:

A. Did the trial court err and abuse its discretion by directing that the evidentiary record in this matter be developed by way of deposition testimony instead of a hearing before a judge of the court as provided by Pennsylvania Rule of Civil Procedure 1910.11(i)?

B. Did the trial court err and abuse its discretion by assessing [Father] with hypothetical income as the assessment was not warranted, the assessment resulted in a greater income than would ordinarily be earned from one full time position and the court failed to correctly apply Pa.R.C.P. 1910.16-2(C)(4)?

C. Did the trial court err and abuse its discretion in assessing [Father's] rental income for all time periods under consideration as the amount of rental income assessed to [Father] was not representative of [Father's] cash flow from rental operations?

D. Did the trial court err and abuse its discretion in the assessment of income to [Mother] in failing to consider any income from [Mother's] business activities including paragliding equipment sales, other independent sales and [Airbnb] rentals?

E. Did the trial court err and abuse its discretion in allocating child care expenses to [Father] as the amount of child care expenses allocated are greater than what should be justified by the circumstances of the parties[?]

Father's Br. at 10-11 (unnecessary capitalization and suggested answers omitted).

"Appellate review of support matters is governed by an abuse of discretion standard." J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa.Super. 2015) (quoting R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa.Super. 2013)). "[A]n abuse of discretion requires proof of more than a mere error of judgment, but rather evidence that the law was misapplied or overridden, or that the judgment was manifestly unreasonable or based on bias, ill will, prejudice or partiality." Portugal v. Portugal, 798 A.2d 246, 249 (Pa.Super. 2002) (quoting Kersey v. Jefferson, 791 A.2d 419, 423 (Pa.Super. 2002)). We will therefore only reverse an order of support "where the order cannot be sustained on any valid ground." Krebs v. Krebs, 944 A.2d 768, 772 (Pa.Super. 2008) (quoting Mencer v. Ruch, 928 A.2d 294, 297 (Pa.Super. 2007)).

I. Use of Deposition Testimony

Father first argues the court erred in ordering the parties to take depositions prior to the de novo hearing. Father asserts that Northampton County has adopted Rule of Civil Procedure 1910.11, which provides that if the court enters an order based on a conference officer's recommendations, and either party demands a hearing, the matter "shall" proceed to a hearing before the court. See Pa.R.C.P. 1910.11(f), (i). According to Father, this restricts development of the record to the de novo hearing.7 Father argues the court's practice of ordering depositions prior to the de novo hearing also violates Rule 1910.1(b), which states that domestic relations matters shall proceed in accordance with the Rules of Civil...

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